Collins v. Yellen

P R E L I M I N A R Y P R I N T
Volume 594 U. S. Part 1
Pages 220–294
OFFICIAL REPORTS
OF
T H E S U P R E M E C O U R T
June 23, 2021
REBECCA A. WOMELDORF
reporter of decisions
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TERM, 2020
Syllabus
COLLINS et al. v. YELLEN, SECRETARY OF THE
TREASUR
Y, et al.
certiorari to the united states court of appeals for
the fth circuit
No. 19–422. Argued December 9, 2020—Decided June 23, 2021*
When the national housing bubble burst in 2008, the Federal National
Mortgage Association (Fannie Mae) and the Federal Home Loan Mort-
gage Corporation (Freddie Mac), two of the Nation's leading sources of
mortgage fnancing, suffered signifcant losses that many feared would
imperil the national economy. To address that concern, Congress
enacted the Housing and Economic Recovery Act of 2008 (Recovery
Act), which, among other things, created the Federal Housing Finance
Agency (FHFA)—an independent agency tasked with regulating the
companies and, if necessary, stepping in as their conservator or receiver.
See 12 U. S. C. § 4501 et seq. At the head of the Agency, Congress in-
stalled a single Director, removable by the President only “for cause.”
§§ 4512(a), (b)(2).
Soon after the FHFA's creation, the Director placed Fannie Mae and
Freddie Mac into conservatorship and negotiated agreements for the
companies with the Department of Treasury. Under those agreements,
Treasury committed to providing each company with up to $100 billion
in capital, and in exchange received, among other things, senior pre-
ferred shares and quarterly fxed-rate dividends. In the years that fol-
lowed, the agencies agreed to a number of amendments, the third of
which replaced the fxed-rate dividend formula with a variable one that
required the companies to make quarterly payments consisting of their
entire net worth minus a small specifed capital reserve.
A group of the companies' shareholders challenged the third amend-
ment on both statutory grounds—that the FHFA exceeded its authority
as a conservator under the Recovery Act by agreeing to the new vari-
able dividend formula—and constitutional grounds—that the FHFA's
structure violates the separation of powers because the Agency is led
by a single Director, removable by the President only for cause. The
District Court dismissed the statutory claim and granted summary
judgment in the FHFA's favor on the constitutional claim. The Fifth
Circuit reversed the District Court's dismissal of the statutory claim,
*Together with No. 19–563, Yellen, Secretary of the Treasury, et al. v.
Collins et al., also on certiorari to the same court.

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held that the FHFA's structure violates the separation of powers, and
concluded
that the appropriate remedy for the constitutional violation
was to sever the removal restriction from the rest of the Recovery Act,
but not to vacate and set aside the third amendment.
Held:
1. The shareholders' statutory claim must be dismissed. The “anti-
injunction clause” of the Recovery Act provides that unless review is
specifcally authorized by one of its provisions or is requested by the
Director, “no court may take any action to restrain or affect the exercise
of powers or functions of the Agency as a conservator or a receiver.”
§ 4617(f ). Where, as here, the FHFA's challenged actions did not ex-
ceed its “powers or functions” “as a conservator,” relief is prohibited.
Pp. 237–242.
(a) The Recovery Act grants the FHFA expansive authority in its
role as a conservator and permits the Agency to act in what it deter-
mines is “in the best interests of the regulated entity or the Agency.”
§ 4617(b)(2)(J)(ii) (emphasis added). So when the FHFA acts as a con-
servator, it may aim to rehabilitate the regulated entity in a way that,
while not in the best interests of the regulated entity, is benefcial
to the Agency and, by extension, the public it serves. This feature of
an FHFA conservatorship is fatal to the shareholders' statutory claim.
The third amendment was adopted at a time when the companies had
repeatedly been unable to make their fxed quarterly dividend payments
without drawing on Treasury's capital commitment. If things had pro-
ceeded as they had in the past, there was a possibility that the compa-
nies would have consumed some or all of the remaining capital commit-
ment in order to pay their dividend obligations. The third amendment's
variable dividend formula eliminated that risk, and in turn ensured that
all of Treasury's capital was available to backstop the companies' opera-
tions during diffcult quarters. Although the third amendment re-
quired the companies to relinquish nearly all of their net worth, the
FHFA could have reasonably concluded that this course of action was
in the best interests of members of the public who rely on a stable
secondary mortgage market. Pp. 237–239.
(b) The shareholders argue that the third amendment did not actu-
ally serve the best interests of the FHFA or the public because it did
not further the asserted objective of protecting Treasury's capital com-
mitment. First, they claim that the FHFA agreed to the amendment
at a time when the companies were on the precipice of a fnancial uptick
which would have allowed them to pay their cash dividends and build up
capital buffers to absorb future losses. Thus, the shareholders assert,
sweeping all the companies' earnings to Treasury increased rather than

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decreased the risk that the companies would make further draws and
e
ventually deplete Treasury's commitment. But the success of the
strategy that the shareholders tout was dependent on speculative pro-
jections about future earnings, and recent experience had given the
FHFA reasons for caution. The nature of the conservatorship author-
ized by the Recovery Act permitted the Agency to reject the sharehold-
ers' suggested strategy in favor of one that the Agency reasonably
viewed as more certain to ensure market stability. Second, the share-
holders claim that the FHFA could have protected Treasury's capital
commitment by ordering the companies to pay the dividends in kind
rather than in cash. This argument rests on a misunderstanding of the
agreement between the companies and Treasury. Paying Treasury in
kind would not have satisfed the cash dividend obligation; it would only
have delayed that obligation, as well as the risk that the companies' cash
dividend obligations would consume Treasury's capital commitment.
Choosing to forgo this option in favor of one that eliminated the risk
entirely was not in excess of the FHFA's authority as a conservator.
Finally, the shareholders argue that because the third amendment left
the companies unable to build capital reserves and exit conservatorship,
it is best viewed as a step toward liquidation, which the FHFA lacked
the authority to take without frst placing the companies in receivership.
This characterization is inaccurate. Nothing about the third amend-
ment precluded the companies from operating at full steam in the mar-
ketplace, and all available evidence suggests that they did. The compa-
nies were not in the process of winding down their affairs. Pp. 239–242.
2. The Recovery Act's restriction on the President's power to remove
the FHFA D irec tor, 12 U. S. C. § 4512( b)(2), is unconstituti ona l.
Pp. 242–261.
(a) The threshold issues raised in the lower court or by the federal
parties and appointed amicus do not bar a decision on the merits of the
shareholders' constitutional claim. Pp. 242–250.
(i) The shareholders have standing to bring their constitutional
claim. See Lujan v. Defenders of Wildlife, 504 U. S. 555, 560–561.
First, the shareholders assert that the FHFA transferred the value of
their property rights in Fannie Mae and Freddie Mac to Treasury, and
that sort of pocketbook injury is a prototypical form of injury in fact.
See Czyzewski v. Jevic Holding Corp., 580 U. S. 451, 464. Second, the
shareholders' injury is traceable to the FHFA's adoption and implemen-
tation of the third amendment, which is responsible for the variable
dividend formula. For purposes of traceability, the relevant inquiry is
whether the plaintiffs' injury can be traced to “allegedly unlawful con-
duct” of the defendant, not to the provision of law that is challenged.
Allen v. Wright, 468 U. S. 737, 751. Finally, a decision in the sharehold-

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223
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ers' favor could easily lead to the award of at least some of the relief
that
the shareholders seek. Pp. 242–244.
(ii) The shareholders' constitutional claim is not moot. After
oral argument was held in this case, the FHFA and Treasury agreed to
amend the stock purchasi ng agreements for a four th ti me. That
amendment eliminated the variable dividend formula that caused the
shareholders' injury. As a result, the shareholders no longer have any
ground for prospective relief, but they retain an interest in the retro-
spective relief they have requested. That interest saves their constitu-
tional claim from mootness. P. 244.
(iii) The shareholders' constitutional claim is not barred by the
Recovery Act's “succession clause.” § 4617(b)(2)(A)(i). That clause ef-
fects only a limited transfer of stockholders' rights, namely, the rights
they hold “with respect to the regulated entity” and its assets. Ibid.
Here, by contrast, the shareholders assert a right that they hold in com-
mon with all other citizens who have standing to challenge the removal
restriction. The succession clause therefore does not transfer to the
FHFA the constitutional right at issue. Pp. 244–246.
(iv) The shareholders' constitutional challenge can proceed even
though the FHFA was led by an Acting Director, as opposed to a
Senate-confir med D irec tor, at the ti me the third amendment was
adopted. The harm allegedly caused by the third amendment did not
come to an end during the tenure of the Acting Director who was in
offce when the amendment was adopted. Rather, that harm is alleged
to have continued after the Acting Director was replaced by a succes-
sion of confrmed Directors, and it appears that any one of those offcers
could have renegotiated the companies' dividend formula with Treasury.
Because confrmed Directors chose to continue implementing the third
amendment while insulated from plenary Presidential control, the sur-
vival of the shareholders' constitutional claim does not depend on the
answer to the question whether the Recovery Act restricted the re-
moval of an Acting Director. The answer to that question could, how-
ever, have a bearing on the scope of relief that may be awarded to the
shareholders. If the statute does not restrict the removal of an Acting
Director, any harm resulting from actions taken under an Acting Direc-
tor would not be attributable to a constitutional violation. Only harm
caused by a confrmed Director's implementation of the third amend-
ment could then provide a basis for relief. In the Recovery Act, Con-
gress expressly restricted the President's power to remove a confrmed
Director but said nothing of the kind with respect to an Acting Director.
When a statute does not limit the President's power to remove an
agency head, the Court generally presumes that the offcer serves at
the President's pleasure. See Shurtleff v. United States, 189 U. S. 311,

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316. Seeing no grounds for departing from that presumption here, the
Cour
t holds that the Recovery Act's removal restriction does not extend
to an Acting Director and proceeds to the merits of the shareholders'
constitutional argument. Pp. 246–250.
(b) The Recovery Act's for-cause restriction on the President's re-
moval authority violates the separation of powers. In Seila Law LLC
v. Consumer Financial Protection Bureau, 591 U. S. 197, the Court
held that Congress could not limit the President's power to remove the
Director of the Consumer Financial Protection Bureau (CFPB) to in-
stances of “ineffciency, neglect, or malfeasance.” Id., at 213. In so
holding, the Court observed that the CFPB, an independent agency led
by a single Director, “lacks a foundation in historical practice and
clashes with constitutional structure by concentrating power in a unilat-
eral actor insulated from Presidential control.” Id., at 204. A
straightforward application of Seila Law's reasoning dictates the result
here. The FHFA (like the CFPB) is an agency led by a single Director,
and the Recovery Act (like the Dodd-Frank Act) restricts the Presi-
dent's removal power. The distinctions Court-appointed amicus draws
between the FHFA and the CFPB are insuffcient to justify a different
result. First, amicus argues that Congress should have greater leeway
to restrict the President's power to remove the FHFA Director because
the FHFA's authority is more limited than that of the CFPB. But the
nature and breadth of an agency's authority is not dispositive in deter-
mining whether Congress may limit the President's power to remove its
head. Moreover, the test that amicus proposes would lead to severe
practical problems. Courts are not well-suited to weigh the relative
importance of the regulatory and enforcement authority of disparate
agencies. Second, amicus contends that Congress may restrict the re-
moval of the FHFA Director because when the Agency steps into the
shoes of a regulated entity as its conservator or receiver, it takes on the
status of a private party and thus does not wield executive power. But
the Agency does not always act in such a capacity, and even when it
does, the Agency must implement a federal statute and may exercise
powers that di ffer cr itica l ly from those of most conservators and
receivers. Third, amicus asserts that the FHFA's structure does not
violate the separation of powers because the entities it regulates are
Government-sponsored enterprises that have federal charters, serve
public objectives, and receive special privileges. This argument fails
because the President's removal power serves important purposes re-
gardless of whether the agency in question affects ordinary Americans
by directly regulating them or by taking actions that have a profound
but indirect effect on their lives. Finally, amicus contends that there
is no constitutional problem in this case because the Recovery Act offers

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as: 594 U. S. 220 (2021)
225
Syllabus
only “modest” tenure protection. But the Constitution prohibits even
“modest
restrictions” on the President's power to remove the head of
an agency with a single top offcer. Id., at 228. Pp. 250–256.
(c) The shareholders seek an order setting aside the third amend-
ment and requiring that all dividend payments made pursuant to that
amendment be returned to Fannie Mae and Freddie Mac. In support
of this request, they contend that the third amendment was adopted and
implemented by offcers who lacked constitutional authority and that
their actions were therefore void ab initio. This argument is neither
logical nor supported by precedent. All the offcers who headed the
FHFA during the time in question were properly appointed. There is
no basis for concluding that any head of the FHFA lacked the authority
to carry out the functions of the offce or that actions taken by the
FHFA in relation to the third amendment are void. That does not nec-
essarily mean, however, that the shareholders have no entitlement to
retrospective relief. Although an unconstitutional provision is never
really part of the body of governing law, it is still possible for an uncon-
stitutional provision to infict compensable harm. The possibility that
the unconstitutional restriction on the President's power to remove a
Director of the FHFA could have such an effect cannot be ruled out.
The parties' arguments on this point should be resolved in the frst in-
stance by the lower courts. Pp. 257–260.
938 F. 3d 553, affrmed in part, reversed in part, vacated in part, and
remanded.
Alito, J., delivered the opinion of the Court, in which Roberts, C. J.,
and Thomas, Kavanaugh, and Barrett, JJ., joined in full; in which
Kagan and Breyer, JJ., joined as to all but Part III–B; in which
Gorsuch, J., joined as to all but Part III–C; and in which Sotomayor, J.,
joined as to Parts I, II, and III–C. Thomas, J., fled a concurring opinion,
post, p. 261. Kagan, J., fled an opinion concurring in part and concurring
in the judgment, in which Breyer and Sotomayor, JJ., joined as to Part
II, post, p. 271. Gorsuch, J., fled an opinion concurring in part, post,
p. 276. Sotomayor, J., fled an opinion concurring in part and dissenting
in part, in which Breyer, J., joined, post, p. 283.
Hashim M. Mooppan argued the cause for the federal par-
ties in both cases. With him on the briefs were Acting So-
licitor General Wall, Acting Assistant Attorney General
Clark, Sopan Joshi, Vivek Suri, Mark B. Stern, and Ge-
rard Sinzdak.
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Aaron L. Nielson, by appointment of the Court, 591
U
. S. –––, argued the cause and fled a brief in both cases
as amicus curiae. With him on the brief was Christopher
J. Walker.
David H. Thompson argued the cause for petitioners in
No. 19–422 and for respondents in No. 19–563. With him on
the briefs fled in both cases were Charles J. Cooper, Peter
A. Patterson, and Charles Randall Flores.†
Justice Alito delivered the opinion of the Court.
Fannie Mae and Freddie Mac are two of the Nation's lead-
ing sources of mortgage fnancing. When the housing crisis
hit in 2008, the companies suffered signifcant losses, and
many feared that their troubling fnancial condition would
imperil the national economy. To address that concern,
Congress enacted the Housing and Economic Recovery Act
of 2008 (Recovery Act), 122 Stat. 2654, 12 U. S. C. § 4501
et seq. Among other things, that law created the Federal
Housing Finance Agency (FHFA), “an independent agency”
tasked with regulating the companies and, if necessary, step-
†A brief of amicus curiae urging reversal in both cases was fled for
the Constitutional Accountability Center by Elizabeth B. Wydra, Brianne
J. Gorod, Brian R. Frazelle, and Ashwin P. Phatak.
Briefs of amici curiae urging affrmance in both cases were fled for
Institutional Investors in Fannie Mae and Freddie Mac by Lawrence D.
Rosenberg and C. Kevin Marshall; and for Thomas P. Vartaian by Linda
C. Goldstein and Robert H. Ledig.
A brief of amicus curiae was fled for John Harrison by Mr. Harrison,
pro se, and Daniel R. Ortiz urging affrmance in No. 19–422.
Briefs of amici curiae were fled in both cases for the Americans for
Prosperity Foundation by Cynthia Fleming Crawford and Michael Pep-
son; for the Pacifc Legal Foundation by Jeffrey W. McCoy, Elizabeth H.
Slattery, and Alison E. Somin; for Scholars by Matthew Cavedon; for
Timothy Howard by Jason A. Levine; and for Jed H. Shugerman by Ra-
chel Homer and Justin Florence.
Richard A. Samp and Harriet M. Hageman fled a brief in No. 19–422
for the New Civil Liberties Alliance as amicus curiae.
Robert C. Schubert fled a brief in No. 19–563 for Bryndon Fisher et al.
as amici curiae.
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Opinion of the Court
ping in as their conservator or receiver. §§ 4511, 4617. At
its
head, Congress installed a single Director, whom the
President could remove only “for cause.” §§ 4512(a), (b)(2).
Shortly after the FHFA came into existence, it placed Fan-
nie Mae and Freddie Mac into conservatorship and negoti-
ated agreements for the companies with the Department of
Treasury. Under those agreements, Treasury committed to
providing each company with up to $100 billion in capital,
and in exchange received, among other things, senior pre-
ferred shares and quarterly fixed-rate dividends. Four
years later, the FHFA and Treasury amended the agree-
ments and replaced the fxed-rate dividend formula with a
variable one that required the companies to make quarterly
payments consisting of their entire net worth minus a small
specifed capital reserve. This deal, which the parties refer
to as the “third amendment” or “net worth sweep,” caused
the companies to transfer enormous amounts of wealth to
Treasury. It also resulted in a slew of lawsuits, including
the one before us today.
A group of Fannie Mae's and Freddie Mac's shareholders
challenged the third amendment on statutory and constitu-
tional grounds. With respect to their statutory claim, the
shareholders contended that the Agency exceeded its author-
ity as a conservator under the Recovery Act when it agreed
to a variable dividend formula that would transfer nearly all
of the companies' net worth to the Federal Government.
And with respect to their constitutional claim, the sharehold-
ers argued that the FHFA's structure violates the separation
of powers because the Agency is led by a single Director
who may be removed by the President only “for cause.”
§ 4512(b)(2). They sought declaratory and injunctive relief,
including an order requiring Treasury either to return the
variable dividend payments or to re-characterize those pay-
ments as a pay down on Treasury's investment.
We hold that the shareholders' statutory claim is barred
by the Recovery Act, which prohibits courts from taking
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“any action to restrain or affect the exercise of [the] powers
or
functions of the Agency as a conservator.” § 4617(f ).
But we conclude that the FHFA's structure violates the sep-
aration of powers, and we remand for further proceedings to
determine what remedy, if any, the shareholders are entitled
to receive on their constitutional claim.
I
A
Congress created the Federal National Mortgage Associ-
ation (Fannie Mae) in 1938 and the Federal Home Loan
Mortgage Corporation (Freddie Mac) in 1970 to support the
Nation's home mortgage system. See National Housing Act
Amendments of 1938, 52 Stat. 23; Federal Home Loan Mort-
gage Corporation Act, 84 Stat. 451. The companies operate
under congressi ona l char ters as for-profit corporations
owned by private shareholders. See Housing and Urban
Development Act of 1968, § 801, 82 Stat. 536, 12 U. S. C.
§ 1716b; Financial Institutions Reform, Recovery, and En-
forcement Act of 1989, § 731, 103 Stat. 429–436, note follow-
ing 12 U. S. C. § 1452. Their primary business is purchasing
mortgages, pooling them into mortgage-backed securities,
and selling them to investors. By doing so, the companies
“relieve mortgage lenders of the risk of default and free up
their capital to make more loans,” Jacobs v. Federal Housing
Finance Agcy. (FHFA), 908 F. 3d 884, 887 (CA3 2018), and
this, in turn, increases the liquidity and stability of America's
home lending market and promotes access to mortgage
credit.
By 2007, the companies' mortgage portfolios had a com-
bined value of approximately $5 trillion and accounted for
almost half of the Nation's mortgage market. So, when the
housing bubble burst in 2008, the companies took a sizeable
hit. In fact, they lost more that year than they had earned
in the previous 37 years combined. See FHFA Offce of In-
spector General, Analysis of the 2012 Amendments to the
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Senior Preferred Stock Purchase Agreements 5 (Mar. 20,
2
013), https://www.f hfaoig.gov/Content/ Files/WPR–2013–
002_2.pdf. Though they remained solvent, many feared the
companies would eventually default and throw the housing
market into a tailspin.
To address that concern, Congress enacted the Recovery
Act. Two aspects of that statute are relevant here.
First, the Recovery Act authorized Treasury to purchase
Fannie Mae's and Freddie Mac's stock if it determined that
infusing the companies with capital would protect taxpayers
and be benefcial to the fnancial and mortgage markets. 12
U. S. C. §§ 1455(l)(1), 1719(g)(1). The statute further pro-
vided that Treasury's purchasing authority would auto-
matically expire at the end of the 2009 calendar year.
§§ 1455(l)(4), 1719(g)(4).
Second, the Recovery Act created the FHFA to regulate
the companies and, in certain specifed circumstances, step
in as their conservator or receiver. §§ 4502(20), 4511(b),
4617.
1
A few features of the Agency deserve mention.
The FHFA is led by a single Director who is appointed
by the President with the advice and consent of the Senate.
§§ 4512(a), (b)(1). The Director serves a 5-year term but
may be removed by the President “for cause.” § 4512(b)(2).
The Director is permitted to choose three deputies to assist
in running the Agency's various divisions, and the Director
sits as Chairman of the Federal Housing Finance Oversight
Board, which advises the Agency about matters of strategy
and policy. §§ 4512(c)–(e), 4513a(a), (c)(4). Since its incep-
tion, the FHFA has had three Senate-confrmed Directors,
and in times of their absence, various Acting Directors have
been selected to lead the Agency on an interim basis. See
Rop v. FHFA, 485 F. Supp. 3d 900, 915 (WD Mich. 2020).
1
Before the Recovery Act was enacted, Fannie Mae and Freddie Mac
were regulated by the Offce of Federal Housing Enterprise Oversight.
See Federal Housing Enterprises Financial Safety and Soundness Act of
1992, §§ 1311–1313, 106 Stat. 3944–3946.
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The Agency is tasked with supervising nearly every as-
pec
t of the companies' management and operations. For
example, the Agency must approve any new products that
the companies would like to offer. § 4541(a). It may reject
acquisitions and certain transfers of interests the compan-
ies seek to execute. § 4513(a)(2)(A). It establishes criteria
governing the companies' portfolio holdings. § 4624(a). It
may order the companies to dispose of or acquire any asset.
§ 4624(c). It may impose caps on how much the companies
compensate their executives and prohibit or limit golden
parachute and indemnifcation payments. § 4518. It may
require the companies to submit regular reports on their
condition or “any other relevant topics.” § 4514(a)(2). And
it must conduct one on-site examination of the companies
each year and may, on any terms the Director deems appro-
priate, hire outside frms to perform additional reviews.
§§ 4517(a)–(b), 4519.
The statute empowers the Agency with broad investiga-
tive and enforcement authority to ensure compliance with
these standards. Among other things, the Agency may hold
hear i ngs, §§ 4582, 4633; issue subpoenas, §§ 4588(a)(3),
4641(a)(3); remove or suspend corporate offcers, § 4636a;
issue cease-and-desist orders, §§ 4581, 4632; bring civil ac-
tions in federal court, §§ 4584, 4635; and impose penalties
ranging from $2,000 to $2 million per day, §§ 4514(c)(2),
4585, 4636(b).
In addition to vesting the FHFA with these supervisory
and enforcement powers, the Recovery Act authorizes the
Agency to act as the companies' conservator or receiver for
the purposes of reorganizing the companies, rehabilitating
them, or winding down their affairs. §§ 4617(a)(1)–(2). The
Director may appoint the Agency in either capacity if the
companies meet certain specifed benchmarks of fnancial
risk or satisfy other criteria, § 4617(a)(3), and once the Direc-
tor makes that appointment, the Agency succeeds to all of
the rights, titles, powers, and privileges of the companies,
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231
Opinion of the Court
§ 4617(b)(2)(A)(i).
2
F
rom there, the Agency has the author-
ity to take control of the companies' assets and operations,
conduct business on their behalf, and transfer or sell any of
their assets or liabilities. §§ 4617(b)(2)(B)–(C), (G). In per-
forming these functions, the Agency may exercise whatever
incidental powers it deems necessary, and it may take any
authorized action that is in the best interests of the compa-
nies or the Agency itself. § 4617(b)(2)(J).
Finally, the FHFA is not funded through the ordinary ap-
propriations process. Rather, the Agency's budget comes
from the assessments it imposes on the entities it regu-
lates, which include Fannie Mae, Freddie Mac, and the Na-
tion's federal home loan banks. §§ 4502(20), 4516(a). Those
assessments are unlimited so long as they do not exceed
the “reasonable costs . . . and expenses of the Agency.”
§ 4516(a). In fscal year 2020, the FHFA collected more than
$311 million. See FHFA, Performance & Accountability
Report 24 (2020), https://www.f hfa.gov/AboutUs/Reports/
ReportDocuments/FHFA-2020-PAR.pdf.
B
In September 2008, less than two months after Congress
enacted the Recovery Act, the Director appointed the FHFA
as conservator of Fannie Mae and Freddie Mac. The follow-
ing day, Treasury exercised its temporary authority to buy
their stock and the FHFA, acting as the companies' conser-
vator, entered into purchasing agreements with Treasury.
3
Under these agreements, Treasury committed to providing
2
Receivership is mandatory in certain circumstances not relevant here.
See 12 U. S. C. § 4617(a)(4).
3
See Amended and Restated Senior Preferred Stock Purchase Agree-
ment Between the United States Department of the Treasury and the
Federal National Mortgage Association (Sept. 26, 2008); Amended and
Restated Senior Preferred Stock Purchase Agreement Between the
United States Department of the Treasury and the Federal Home Loan
Mor tgage Cor porati on (Sept. 26, 2008) (onli ne sources arch ived at
www.supremecourt.gov).
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each company with up to $100 billion in capital, upon which
it
could draw in any quarter in which its liabilities exceeded
its assets. In return for this funding commitment, Treas-
ury received 1 million shares of specially created senior
preferred stock in each company.
Those shares provided Treasury with four key entitle-
ments. First, Treasury received a senior liquidation prefer-
ence equal to $1 billion in each company, with a dollar-for-
dollar increase every time the company drew on the capital
commitment. In other words, in the event the FHFA liqui-
dated Fannie Mae or Freddie Mac, Treasury would have the
right to be paid back $1 billion, as well as whatever amount
the company had already drawn from the capital commit-
ment, before any other investors or shareholders could seek
repayment. Second, Treasury was given warrants, or long-
term options, to purchase up to 79.9% of the companies'
common stock at a nominal price. Third, Treasury became
entitled to a quarterly periodic commitment fee, which the
companies would pay to compensate Treasury for the sup-
port provided by the ongoing access to capital.
4
And fnally,
the companies became obligated to pay Treasury quarterly
cash dividends at an annualized rate equal to 10% of Treas-
ury's outstanding liquidation preference.
Within a year, Fannie Mae's and Freddie Mac's net worth
decreased substantially, and it became clear that Treasury's
initial capital commitment would prove inadequate. To ad-
dress that problem, the FHFA and Treasury twice amended
the agreements to increase the available capital. The frst
amendment came in May 2009, when Treasury doubled its
combined commitment from $200 billion to $400 billion.
5
4
Treasury has the authority to waive this fee. At the time this lawsuit
was fled, Treasury had always exercised this option and had never re-
ceived a periodic commitment fee from the companies. See App. 61.
5
See Amendment to Amended and Restated Senior Preferred Stock
Purchase Agreement Between the United States Department of the
Treasury and Federal National Mortgage Association (May 6, 2009);
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And the second amendment was adopted in December 2009,
when
Treasury agreed to provide as much funding as the
companies needed through 2012, after which the cap would
be reinstated.
6
The companies drew sizeable amounts from Treasury's
capital commitment in the years that followed. And be-
cause of the fxed-rate dividend formula, the more money
they drew, the larger their dividend obligations became.
The companies consistently lacked the cash necessary to pay
them, and they began the circular practice of drawing funds
from Treasury's capital commitment just to hand those funds
back as a quarterly dividend. By the middle of 2012, the
companies had drawn over $187 billion, and $26 billion of
that was used to satisfy their dividend obligations.
In August 2012, the FHFA and Treasury decided to amend
the agreements for a third time.
7
This amendment replaced
the fxed-rate dividend formula (which was tied to the size
of Treasury's investment) with a variable dividend formula
(which was tied to the companies' net worth). Under the
new formula, the companies were required to pay a dividend
Amendment to Amended and Restated Senior Preferred Stock Purchase
Agreement Between the United States Department of the Treasury and
Federal Home Loan Mortgage Corporation (May 6, 2009) (online sources
archived at www.supremecourt.gov).
6
See Second Amendment to Amended and Restated Senior Preferred
Stock Purchase Agreement Between the United States Department of the
Treasury and Federal National Mortgage Association (Dec. 24, 2009); Sec-
ond Amendment to Amended and Restated Senior Preferred Stock Pur-
chase Agreement Between the United States Department of the Treasury
and Federal Home Loan Mortgage Corporation (Dec. 24, 2009) (online
sources archived at www.supremecourt.gov).
7
See Third Amendment to Amended and Restated Senior Preferred
Stock Purchase Agreement Between the United State Department of the
Treasury and Federal National Mortgage Association (Aug. 17, 2012);
Third Amendment to Amended and Restated Senior Preferred Stock Pur-
chase Agreement Between the United States Department of the Treasury
and Federal Home Loan Mortgage Corporation (Aug. 17, 2012) (online
sources archived at www.supremecourt.gov).
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equal to the amount, if any, by which their net worth ex-
ceeded
a pre-determined capital reserve.
8
In addition, the
amendment suspended the companies' obligations to pay pe-
riodic commitment fees.
Shifting from a fxed-rate dividend formula to a variable
one materially changed the nature of the agreements. If the
net worth of Fannie Mae or Freddie Mac at the end of
a quarter exceeded the capital reserve, the amendment re-
quired the company to pay all of the surplus to Treasury.
But if a company's net worth at the end of a quarter did not
exceed the reserve or if it lost money during a quarter, the
amendment did not require the company to pay anything.
This ensured that Fannie Mae and Freddie Mac would never
again draw money from Treasury just to make their quar-
terly dividend payments, but it also meant that the compa-
nies would not be able to accrue capital in good quarters.
After the third amendment took effect, the companies'
fnancial condition improved, and they ended up transferring
immense amounts of wealth to Treasury. In 2013, the com-
panies paid a total of $130 billion in dividends. In 2014, they
paid over $40 billion. In 2015, they paid almost $16 billion.
And in 2016, they paid almost $15 billion.
9
These payments
totaled approximately $200 billion, which is at least $124 bil-
8
The capital reserve for each company began at $3 billion and was
scheduled to decrease to zero by January 2018. In December 2017, how-
ever, Treasury agreed to restore the reserve to $3 billion per company in
return for a liquidation-preference increase of the same amount. See Let-
ters from S. Mnuchin, Secretary of Treasury, to M. Watt, Director of the
FHFA (Dec. 21, 2017). And in September 2019, Treasury agreed to raise
the reserve to $25 billion for Fannie Mae and $20 billion for Freddie Mac,
again in return for corresponding increases in the liquidation preference.
See Letters from S. Mnuchin, Secretary of Treasury, to M. Calabria,
D irec tor of the FHFA (Sept. 27, 2019) (onli ne sources arch ived at
www.supremecourt.gov).
9
See Fannie Mae, Form 10–K for Fiscal Year Ended Dec. 31, 2016, p. 120,
https://www.fanniemae.com/media /26811/display; Freddie Mac, Form 10–K
for Fiscal Year Ended Dec. 31, 2016, p. 283, https://www.freddiemac.com/
investors/fnancials/pdf/10k_021617.pdf.
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lion more than the companies would have had to pay during
those
four years under the fxed-rate dividend formula that
previously applied.
The third amendment stayed in place for another four
years. In January 2021, the FHFA and Treasury amended
the stock purchasing agreements for a fourth time.
10
This
amendment, which is currently in place, suspends the compa-
nies' quarterly dividend payments until they build up enough
capital to meet certain specifed thresholds, a process that
we are told is expected to take years. See Letter from E.
Prelogar, Acting Solicitor General, to S. Harris, Clerk of
Court (Mar. 18, 2021). During that time, each company is
required to pay Treasury through increases in the liquidation
preference that are equal to the increase, if any, in its net
worth during the previous fscal year. Once that threshold
is met, the company will resume quarterly dividend pay-
ments, and those dividends will be equal to the lesser of 10%
of Treasury's liquidation preference or the incremental in-
crease in the company's net worth in the previous quarter.
In addition, the company will be required to pay periodic
commitment fees.
C
In 2016, three of Fannie Mae's and Freddie Mac's share-
holders brought suit against the FHFA and its Director, and
they asserted two claims that are relevant for present pur-
poses. First, they claimed that the FHFA exceeded its stat-
utory authority as the companies' conservator by adopting
the third amendment. Second, they asserted that because
the FHFA is led by a single Director who may be removed
by the President only “for cause,” its structure is unconstitu-
tional. They asked for various forms of equitable relief, in-
cluding a declaration that the third amendment violated the
10
See Letters from S. Mnuchin, Secretary of Treasury, to M. Calabria,
Director of the FHFA (Jan. 14, 2021) (online source archived at www.
supremecourt.gov).
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Recovery Act and that the FHFA's structure is unconstitu-
ti
onal; an injunction ordering Treasury to return to Fannie
Mae and Freddie Mac all the dividend payments that
were made under the third amendment or alternatively, a
re-characterization of those payments as a pay-down of the
liquidation preference and a corresponding redemption of
Treasury's stock; an order vacating and setting aside the
third amendment; and an order enjoining the FHFA and
Treasury from taking any further action to implement the
third amendment.
11
The District Court dismissed the statutory claim and
granted summary judgment in favor of the FHFA on the
constitutional claim, Collins v. FHFA, 254 F. Supp. 3d 841
(SD Tex. 2017), and a three-judge panel of the Fifth Circuit
affrmed in part and reversed in part, Collins v. Mnuchin,
896 F. 3d 640 (2018) (per curiam). At the request of both
parties, the Fifth Circuit reheard the case en banc. Collins
v. Mnuchin, 908 F. 3d 151 (2018). In a deeply fractured
opinion, the en banc court reversed the District Court's dis-
missal of the statutory claim; held that the FHFA's structure
violates the separation of powers; and concluded that the ap-
propriate remedy for the constitutional violation was to
sever the removal restriction from the rest of the Recovery
Act, but not to vacate and set aside the third amendment.
Collins v. Mnuchin, 938 F. 3d 553 (2019).
Both the shareholders and the federal parties sought this
Court's review, and we granted certiorari. 591 U. S. –––
(2020). Because the federal parties did not contest the Fifth
Circuit's conclusion that the Recovery Act's removal restric-
tion improperly insulates the Director from Presidential con-
trol, we appointed Aaron Nielson to brief and argue, as
amicus curiae, in support of the position that the FHFA's
11
The shareholders also sued Treasury and its Secretary, contending
that the Agency exceeded its statutory authority and acted arbitrarily
and capriciously in adopting the third amendment. The District Court
dismissed these claims, the Fifth Circuit affrmed, and the shareholders
did not seek review of those holdings in this Court.
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237
Opinion of the Court
structure is constitutional. He has ably discharged his
responsibi
lities.
II
We begin with the shareholders' statutory claim and con-
clude that the Recovery Act requires its dismissal.
In the Recovery Act, Congress sharply circumscribed judi-
cial review of any action that the FHFA takes as a conser-
vator or receiver. The Act states that unless review is
specifcally authorized by one of its provisions or is re-
quested by the Director, “no court may take any action to
restrain or affect the exercise of powers or functions of the
Agency as a conservator or a receiver.” 12 U. S. C. § 4617(f ).
The parties refer to this as the Act's “anti-injunction clause.”
Every Court of Appeals that has confronted this language
has held that it prohibits relief where the FHFA action at
issue fell within the scope of the Agency's authority as a
conservator, but that relief is allowed if the FHFA exceeded
that authority. See Jacobs, 908 F. 3d, at 889; Saxton v.
FHFA, 901 F. 3d 954, 957–958 (CA8 2018); Roberts v. FHFA,
889 F. 3d 397, 402 (CA7 2018); Robinson v. FHFA, 876 F. 3d
220, 228 (CA6 2017); Perry Capital LLC v. Mnuchin, 864
F. 3d 591, 605–606 (CADC 2017); County of Sonoma v.
FHFA, 710 F. 3d 987, 992 (CA9 2013); Leon Cty. v. FHFA,
700 F. 3d 1273, 1278 (CA11 2012).
We agree with that consensus. The anti-injunction clause
applies only where the FHFA exercised its “powers or func-
tions” “as a conservator or a receiver.” Where the FHFA
does not exercise but instead exceeds those powers or func-
tions, the anti-injunction clause imposes no restrictions.
With that understanding in mind, we must decide whether
the FHFA was exercising its powers or functions as a con-
servator when it agreed to the third amendment. If it was,
then the anti-injunction clause bars the shareholders' statu-
tory claim.
A
The Recovery Act grants the FHFA expansive authority
in its role as a conservator. As we have explained, the
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Agency is authorized to take control of a regulated entity's
assets
and operations, conduct business on its behalf, and
transfer or sel l any of its assets or l iabi l ities. See
§§ 4617(b)(2)(B)–(C), (G). When the FHFA exercises these
powers, its actions must be “necessary to put the regulated
entity in a sound and solvent condition” and must be “appro-
priate to carry on the business of the regulated entity
and preserve and conserve [its] assets and proper ty. ”
§ 4617(b)(2)(D). Thus, when the FHFA acts as a conserva-
tor, its mission is rehabilitation, and to that extent, an FHFA
conservatorship is like any other. See, e. g., Resolution
Trust Corporation v. CedarMinn Bldg. Ltd. Partnership,
956 F. 2d 1446, 1454 (CA8 1992).
12
An FHFA conservatorship, however, differs from a typical
conservatorship in a key respect. Instead of mandating that
the FHFA always act in the best interests of the regulated
entity, the Recovery Act authorizes the Agency to act in
what it determines is “in the best interests of the regulated
entity or the Agency.” § 4617(b)(2)(J)(ii) (emphasis added).
Thus, when the FHFA acts as a conservator, it may aim to
rehabilitate the regulated entity in a way that, while not in
the best interests of the regulated entity, is benefcial to the
Agency and, by extension, the public it serves. This distinc-
tive feature of an FHFA conservatorship is fatal to the
shareholders' statutory claim.
The facts alleged in the complaint demonstrate that the
FHFA chose a path of rehabilitation that was designed to
serve public interests by ensuring Fannie Mae's and Freddie
Mac's continued support of the secondary mortgage market.
12
By contrast, when the FHFA acts as a receiver, it is required to “place
the regulated entity in liquidation and proceed to realize upon the assets
of the regulated entity.” § 4617(b)(2)(E). The roles of conservator and
receiver are very different. See § 4617(a)(4)(D) (“The appointment of the
Agency as receiver of a regulated entity under this section shall immedi-
ately terminate any conservatorship established for the regulated entity
under this chapter”).
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Recall that the third amendment was adopted at a time when
the
companies' liabilities had consistently exceeded their
assets over at least the prior three years. See supra, at 233.
It is undisputed that the companies had repeatedly been un-
able to make their fxed quarterly dividend payments with-
out drawing on Treasury's capital commitment. And there
is also no dispute that the cap on Treasury's capital commit-
ment was scheduled to be reinstated at the end of
the year and that Treasury's temporary stock-purchasing au-
thority had expired in 2009. See §§ 1455(l)(4), 1719(g)(4).
If things had proceeded as they had in the past, there was a
realistic possibility that the companies would have consumed
some or all of the remaining capital commitment in order to
pay their dividend obligations, which were themselves in-
creasing in size every time the companies made a draw.
The third amendment eliminated this risk by replacing the
fxed-rate dividend formula with a variable one. Under the
new formula, the companies would never again have to use
capital from Treasury's commitment to pay their dividends.
And that, in turn, ensured that all of Treasury's capital was
available to backstop the companies' operations during diff-
cult quarters. In exchange, the companies had to relinquish
nearly all their net worth, and this made certain that they
would never be able to build up their own capital buffers,
pay back Treasury's investment, and exit conservatorship.
Whether or not this new arrangement was in the best inter-
ests of the companies or their shareholders, the FHFA could
have reasonably concluded that it was in the best interests
of members of the public who rely on a stable secondary
mortgage market. The Recovery Act therefore authorized
the Agency to choose this option.
B
The shareholders contend that the third amendment did
not actually serve the best interests of the FHFA or the
public because it did not further the asserted objective of
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Opinion of the Court
protecting Treasury's capital commitment. This is so, the
shareholders
argue, for two reasons.
First, they claim that the FHFA adopted the third amend-
ment at a time when the companies were on the precipice of
a fnancial uptick and that they would soon have been in a
position not only to pay cash dividends, but also to build up
capital buffers to absorb future losses. Thus, the sharehold-
ers assert, sweeping all the companies' earnings to Treasury
increased rather than decreased the risk that the companies
would make further draws and eventually deplete Treas-
ury's commitment.
The nature of the conservatorsh ip author i zed by the
Recovery Act permitted the Agency to reject the sharehold-
ers' suggested strategy in favor of one that the Agency rea-
sonably viewed as more certain to ensure market stability.
The success of the strategy that the shareholders tout was
dependent on speculative projections about future earnings,
and recent experience had given the FHFA reasons for cau-
tion. The companies had been repeatedly unable to pay
their dividends from 2009 to 2011. With the aim of more
securely ensuring market stability, the FHFA did not exceed
the scope of its conservatorship authority by deciding on
what it viewed as a less risky approach.
Second, the shareholders contend that the FHFA could
have protected Treasury's capital commitment by ordering
the companies to pay the dividends in kind rather than in
cash. This argument rests on a misunderstanding of the
agreement between the companies and Treasury. The com-
panies' stock certifcates required Fannie Mae and Freddie
Mac to pay their dividends “in cash in a timely manner.”
App. 180, 198. If the companies had failed to do so, they
would have incurred a penalty: Treasury's liquidation prefer-
ence would have immediately increased by the dividend
amount, and the dividend rate would have increased from
10% to 12% until the companies paid their outstanding divi-

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241
Opinion of the Court
dends in cash.
13
Thus,
paying Treasury in kind would not
have satisfed the cash dividend obligation, and the risk that
the companies' cash dividend obligations would consume
Treasury's capital commitment in the future would have re-
mained. Choosing to forgo this option in favor of one that
eliminated the risk entirely was not in excess of the FHFA's
statutory authority as conservator.
Finally, the shareholders argue that because the third
amendment left the companies unable to build capital re-
serves and exit conservatorship, it is best viewed as a step
toward ultimate liquidation and, according to the sharehold-
ers, the FHFA lacked the authority to take this decisive step
without frst placing the companies in receivership.
The shareholders' characterization of the third amendment
as a step toward liquidation is inaccurate. Nothing about
the amendment precluded the companies from operating at
full steam in the marketplace, and all the available evidence
suggests that they did so. Between 2012 and 2016 alone, the
companies “collectively purchased at least 11 million mort-
gages on single-family owner-occupied properties, and Fan-
nie issued over $1.5 trillion in single-family mortgage-backed
securities.” Perry Capital, 864 F. 3d, at 602. During that
time, the companies amassed over $200 billion in net worth
and, as of November 2020, Fannie Mae's mortgage portfolio
had grown to $163 billion and Freddie Mac's to $193 billion.
14
13
The senior preferred stock certifcates provide: “[I]f at any time the
Company shall have for any reason failed to pay dividends in cash in a
timely manner as required by this Certifcate, then immediately following
such failure and for all Dividend Periods thereafter until the Dividend Pe-
riod following the date on which the Company shall have paid in cash full
cumulative dividends (including any unpaid dividends added to the Liquida-
tion Preference . . . ), the `Dividend Rate' shall mean 12.0%”. App. 180, 198.
14
See Dept. of Treasury Press Release, Treasury Department and
FHFA Amend Terms of Preferred Stock Purchase Agreements for Fan-
nie Mae and Freddie Mac (Jan. 14, 2021), https://home.treasury.gov/news/
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242 COL
LINS v. YELLEN
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This evidence does not suggest that the companies were in
the
process of winding down their affairs.
It is not necessary for us to decide—and we do not
decide—whether the FHFA made the best, or even a partic-
ularly good, business decision when it adopted the third
amendment. Instead, we conclude only that under the
terms of the Recovery Act, the FHFA did not exceed its
authority as a conservator, and therefore the anti-injunction
clause bars the shareholders' statutory claim.
III
We now consider the shareholders' claim that the statutory
restriction on the President's power to remove the FHFA
Director, 12 U. S. C. § 4512(b)(2), is unconstitutional.
A
Before turning to the merits of this question, however, we
must address threshold issues raised in the lower court or
by the federal parties and appointed amicus.
1
In the proceedings below, some judges concluded that the
shareholders lack standing to bring their constituti onal
claim. See 938 F. 3d, at 620 (Costa, J., dissenting in part).
Because we have an obligation to make sure that we have
jurisdiction to decide this claim, see DaimlerChrysler Corp.
v. Cuno, 547 U. S. 332, 340 (2006), we begin by explaining
why the shareholders have standing.
To establish Article III standing, a plaintiff must show
that it has suffered an “injury in fact” that is “fairly trace-
able” to the defendant's conduct and would likely be “re-
dressed by a favorable decision.” Lujan v. Defenders of
Wildlife, 504 U. S. 555, 560–561 (1992) (alterations and in-
ternal quotation marks omitted). The shareholders meet
these requirements.
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First, the shareholders claim that the FHFA transferred
the
value of their property rights in Fannie Mae and Freddie
Mac to Treasury, and that sort of pocketbook injury is a pro-
totypical form of injury in fact. See Czyzewski v. Jevic
Holding Corp., 580 U. S. 451, 464 (2017). Second, the share-
holders' injury is traceable to the FHFA's adoption and im-
plementation of the third amendment, which is responsible
for the variable dividend formula that swept the companies'
net worth to Treasury and left nothing for their private
shareholders. Finally, a decision in the shareholders' favor
could easily lead to the award of at least some of the relief
that the shareholders seek. We found standing under simi-
lar circumstances in Seila Law LLC v. Consumer Financial
Protection Bureau, 591 U. S. 197 (2020). See id., at 211 (“In
the specifc context of the President's removal power, we
have found it suffcient that the challenger sustains injury
from an executive act that allegedly exceeds the offcial's au-
thority” (brackets and internal quotation marks omitted));
see also Free Enterprise Fund v. Public Company Account-
ing Oversight Bd., 561 U. S. 477 (2010) (considering challenge
to removal restriction where plaintiffs claimed injury from
allegedly unlawful agency oversight).
The judges who thought that the shareholders lacked
standing reached that conclusion on the ground that the
shareholders could not trace their injury to the Recovery
Act's removal restriction. See 938 F. 3d, at 620–621 (opinion
of Costa, J.). But for purposes of traceability, the relevant
inquiry is whether the plaintiffs' injury can be traced to “al-
legedly unlawful conduct” of the defendant, not to the provi-
sion of law that is challenged. Allen v. Wright, 468 U. S.
737, 751 (1984); see also Lujan, supra, at 560 (explaining that
the plaintiff must show “a causal connection between the in-
jury and the conduct complained of,” and that “the injury
has to be fairly traceable to the challenged action of the
defendant” (quoting Simon v. Eastern Ky. Welfare Rights
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Organization, 426 U. S. 26, 41 (1976); brackets, ellipsis, and
i
nternal quotation marks omitted)). Because the relevant
action in this case is the third amendment, and because the
shareholders' concrete injury fows directly from that amend-
ment, the traceability requirement is satisfed.
2
After oral argument was held in this case, the federal par-
ties notifed the Court that the FHFA and Treasury had
agreed to amend the stock purchasing agreements for a
fourth time.
15
And because that amendment eliminated the
variable dividend formula that had caused the shareholders'
injury, it is necessary to consider whether the fourth amend-
ment moots the shareholders' constitutional claim.
It does so only with respect to some of the relief re-
quested. In their complaint, the shareholders sought vari-
ous forms of prospective relief, but because that amendment
is no longer in place, the shareholders no longer have any
ground for such relief. By contrast, they retain an interest
in the retrospective relief they have requested, and that in-
terest saves their constitutional claim from mootness.
3
The federal parties contend that the “succession clause” in
the Recovery Act bars the shareholders' constitutional claim.
Under this clause, when the FHFA appoints itself as conser-
vator, it immediately succeeds to “all rights, titles, powers,
and privileges of the regulated entity, and of any stockholder,
offcer, or director of such regulated entity with respect to
the regulated entity and the assets of the regulated entity.”
12 U. S. C. § 4617(b)(2)(A)(i). According to the federal par-
ties, this clause transferred to the FHFA the shareholders'
right to bring their constitutional claim, and it therefore bars
15
See Letter from E. Prelogar, Acting Solicitor General, to S. Harris,
Clerk of Court (Mar. 18, 2021).
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Opinion of the Court
the shareholders from asserting that claim on their own be-
ha
lf. In other words, the federal parties read the succession
clause to mean that the only party with the authority to chal-
lenge the restriction on the President's power to remove the
Director of the FHFA is the FHFA itself.
The federal parties read the succession clause too broadly.
The clause effects only a limited transfer of stockholders'
rights, namely, the rights they hold as stockholders “with
respect to the regulated entity” and its assets. The right
the shareholders assert in this case is one that they hold in
common with all other citizens who have standing to chal-
lenge the removal restriction. As we have explained on
many prior occasions, the separation of powers is designed
to preserve the liberty of all the people. See, e. g., Bowsher
v. Synar, 478 U. S. 714, 730 (1986); Youngstown Sheet & Tube
Co. v. Sawyer, 343 U. S. 579, 635 (1952) (Jackson, J., concur-
ring) (noting that the Constitution “diffuses power the better
to secure liberty”). So whenever a separation-of-powers
violation occurs, any aggrieved party with standing may fle
a constitutional challenge. See, e. g., Seila Law, supra, at
211; Bond v. United States, 564 U. S. 211, 223 (2011); INS
v. Chadha, 462 U. S. 919, 935–936 (1983). Nearly half our
hallmark removal cases have been brought by aggrieved pri-
vate parties. See Seila Law, supra, at 208–209 (law frm to
which the agency issued a civil investigative demand); Free
Enterprise Fund, supra, at 487 (accounting frm placed
under agency investigation); Morrison v. Olson, 487 U. S.
654, 668 (1988) (federal offcials subject to subpoenas issued
at the request of an independent counsel); Bowsher, supra,
at 719 (union representing employee-members whose beneft
increases were suspended due to an action of the Comptrol-
ler General).
Here, the right asserted is not one that is distinctive to
shareholders of Fannie Mae and Freddie Mac; it is a right
shared by everyone in this country. Because the succession
clause transfers the rights of “stockholder[s] . . . with respect
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to the regulated entity,” it does not transfer to the FHFA
the
constitutional right at issue.
16
4
The federal parties and appointed amicus next contend
that the shareholders' constitutional challenge was dead on
arrival because the third amendment was adopted when the
FHFA was led by an Acting Director
17
who was removable
by the President at will. This argument would have merit
if (a) the Acting Director was indeed removable at will (a
matter we address below, see infra, at 247–250) and (b) all
the harm allegedly incurred by the shareholders had been
completed at the time of the third amendment's adoption.
Under those circumstances, any constitutional defect in the
provision restricting the removal of a confrmed Director
would not have harmed the shareholders, and they would
not be entitled to any relief. But the harm allegedly caused
by the third amendment did not come to an end during the
tenure of the Acting Director who was in offce when the
amendment was adopted. That harm is alleged to have con-
tinued after the Acting Director was replaced by a succes-
sion of confrmed Directors, and it appears that any one of
those offcers could have renegotiated the companies' divi-
dend formula with Treasury. From what we can tell from
the record, the FHFA and Treasury consistently reevaluated
the stock purchasing agreements and adopted amendments
as they thought necessary. Nothing in the third amendment
suggested that it was permanent or that the FHFA lacked
the ability to bring Treasury back to the bargaining table.
After all, the agencies adopted a fourth amendment just this
year. The federal parties and amicus do not dispute this.
16
The federal parties also argue that the Recovery Act's succession
clause bars the shareholders' statutory claim. Because we have con-
cluded that the statutory claim is already barred by the anti-injunction
clause, we do not address this argument.
17
See Rop v. FHFA, 485 F. Supp. 3d 900, 915 (WD Mich. 2020).

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247
Opinion of the Court
Accordingly, continuing to implement the third amendment
was
a decision that each confrmed Director has made since
2012, and because confrmed Directors chose to continue im-
plementing the third amendment while insulated from ple-
nary Presidential control, the survival of the shareholders'
constitutional claim does not depend on the answer to the
question whether the Recovery Act restricted the removal
of an Acting Director.
On the other hand, the answer to that question could have
a bearing on the scope of relief that may be awarded to
the shareholders. If the statute unconstitutionally restricts
the authority of the President to remove an Acting Director,
the shareholders could seek relief rectifying injury inficted
by actions taken while an Acting Director headed the
Agency. But if the statute does not restrict the removal of
an Acting Director, any harm resulting from actions taken
under an Acting Director would not be attributable to a con-
stitutional violation. Only harm caused by a confrmed Di-
rector's implementation of the third amendment could then
provide a basis for relief. We therefore consider what the
Recovery Act says about the removal of an Acting Director.
The Recovery Act's removal restriction provides that
“[t]he Director shall be appointed for a term of 5 years, un-
less removed before the end of such term for cause by the
President.” 12 U. S. C. § 4512(b)(2). That provision refers
only to “the Director,” and it is surrounded by other provi-
sions that apply only to the Director. See § 4512(a) (estab-
lishing the position of the Director); § 4512(b)(1) (setting out
the procedure for appointing the Director); § 4512(b)(3) (dis-
cussing the manner for selecting a new Director to fll a
vacancy).
The Act's mention of an “acting Director” does not appear
until four subsections later, and that subsection does not in-
clude any removal restriction. See § 4512(f ). Nor does it
cross-reference the earlier restriction on the removal of a
confrmed Director. Ibid. Instead, it merely states that
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“[i]n the event of the death, resignation, sickness, or absence
of
the Director, the President shall designate” one of three
Deputy Directors to serve as an Acting Director until
the Senate-confrmed Director returns or his successor is
appointed. Ibid.
That omission is telling. When a statute does not limit
the President's power to remove an agency head, we gener-
ally presume that the offcer serves at the President's pleas-
ure. See Shurtleff v. United States, 189 U. S. 311, 316
(1903). Moreover, “when Congress includes particular lan-
guage in one section of a statute but omits it in another sec-
tion of the same Act, it is generally presumed that Congress
acts intentionally and purposely in the disparate inclusion or
exclusion.” Barnhart v. Sigmon Coal Co., 534 U. S. 438, 452
(2002) (internal quotation marks omitted). In the Recovery
Act, Congress expressly restricted the President's power to
remove a confrmed Director but said nothing of the kind
with respect to an Acting Director. And Congress might
well have wanted to provide greater protection for a Direc-
tor who had been confrmed by the Senate than for an Acting
Director in whose appointment Congress had played no role.
In any event, the disparate treatment weighs against the
shareholders' interpretation.
In support of that interpretation, the shareholders frst
contend that the Recovery Act should be read to restrict the
removal of an Acting Director because the Act refers to the
FHFA as an “independent agency of the Federal Govern-
ment.” 12 U. S. C. § 4511(a) (emphasis added). The refer-
ence to the FHFA's independence, they claim, means that
any person heading the Agency was intended to enjoy a de-
gree of independence from Presidential control.
That interpretation reads far too much into the term “in-
dependent.” The term does not necessarily mean that the
Agency is “independent” of the President. It may mean in-
stead that the Agency is not part of and is therefore inde-
pendent of any other unit of the Federal Government. And
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Opinion of the Court
describing an agency as independent would be an odd way
to
signify that its head is removable only for cause because
even an agency head who is shielded in that way would
hardly be fully “independent” of Presidential control.
A review of other enabling statutes that describe agencies
as “independent” undermines the shareholders' interpreta-
tion of the term. Congress has described many agencies as
“independent” without imposing any restriction on the Presi-
dent's power to remove the agency's leadership. This is
true, for example, of the Peace Corps, 22 U. S. C. §§ 2501–1,
2503, the Defense Nuclear Facilities Safety Board, 42 U. S. C.
§ 2286, the Commodity Futures Trading Commissi on, 7
U. S. C. § 2(a)(2), the Farm Credit Administration, 12 U. S. C.
§§ 2241–2242, the National Credit Union Administration, 12
U. S. C. § 1752a, and the Railroad Retirement Board, 45
U. S. C. § 231f(a).
In other statutes, Congress has restricted the President's
removal power without referring to the agency as “inde-
pendent.” This is the case for the Commission on Civil
Rights, 42 U. S. C. §§ 1975(a), (e), the Federal Trade Commis-
si on, 15 U. S. C. § 41, and the Nati ona l Labor Relati ons
Board, 29 U. S. C. § 153. And in yet another group of stat-
utes, Congress has referred to an agency as “independent”
but has not expressly provided that the removal of the
agency head is subject to any restrictions. See 44 U. S. C.
§§ 2102, 2103 (National Archives and Records Administra-
tion); 42 U. S. C. §§ 1861, 1864 (National Science Foundation).
That combination of provisions shows that the term “inde-
pendent” does not necessarily connote independence from
Presidential control, and we refuse to read that connotation
into the Recovery Act.
Taking a different tack, the shareholders claim that their
interpretation is supported by the absence of any reference
to removal in the Recovery Act's provision on Acting Direc-
tors. Again, that provision states that if the Director is ab-
sent, “the President shall designate [one of the FHFA's three
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Deputy Directors] to serve as acting Director until the re-
tur
n of the Director, or the appointment of a successor.” 12
U. S. C. § 4512(f ). According to the shareholders, this text
makes clear that an Acting Director differs from a confrmed
Director in three respects (manner of appointment, qualif-
cations, and length of tenure). They assume that these are
the only respects in which confrmed and Acting Directors
differ, and they therefore conclude that the permissible
grounds for removing an Acting Director are the same as
those for a confrmed Director.
This argument draws an unwarranted inference from the
Recovery Act's silence on this matter. As noted, we gener-
ally presume that the President holds the power to remove
at will executive offcers and that a statute must contain
“plain language to take [that power] away. ” Shur tle ff,
supra, at 316. The shareholders argue that this is not a
hard and fast rule, but we certainly see no grounds for an
exception in this case.
18
For all these reasons, we hold that the Recovery Act's re-
moval restriction does not extend to an Acting Director, and
we now proceed to the merits of the shareholders' constitu-
tional argument.
B
The Recovery Act's for-cause restriction on the President's
removal authority violates the separation of powers. In-
deed, our decision last Term in Seila Law is all but dis-
positive. There, we held that Congress could not limit the
President's power to remove the Director of the Consumer
Financial Protection Bureau (CFPB) to instances of “ineff-
ciency, neglect, or malfeasance.” 591 U. S., at 213. We did
18
In Wiener v. United States, 357 U. S. 349 (1958), the Court read a
removal restriction into the War Claims Act of 1948. But it did so on the
rationale that the War Claims Commission was an adjudicatory body, and
as such, it had a unique need for “absolute freedom from Executive inter-
ference.” Id., at 353, 355–356. The FHFA is not an adjudicatory body,
so Shurtleff, not Weiner, is the more applicable precedent.
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Opinion of the Court
“not revisit our prior decisions allowing certain limitations
on
the President's removal power,” but we found “compelling
reasons not to extend those precedents to the novel context
of an independent agency led by a single Director.” Id., at
204 (opinion of Roberts, C. J.). “Such an agency,” we ob-
served, “lacks a foundation in historical practice and clashes
with constitutional structure by concentrating power in a
unilateral actor insulated from Presidential control.” Ibid.
A straightforward application of our reasoning in Seila
Law dictates the result here. The FHFA (like the CFPB)
is an agency led by a single Director, and the Recovery Act
(like the Dodd-Frank Act) restricts the President's removal
power. Fulflling his obligation to defend the constitutional-
ity of the Recovery Act's removal restriction, amicus at-
tempts to distinguish the FHFA from the CFPB. We do not
fnd any of these distinctions suffcient to justify a different
result.
1
Amicus frst argues that Congress should have greater
leeway to restrict the President's power to remove the
FHFA Director because the FHFA's authority is more lim-
ited than that of the CFPB. Amicus points out that the
CFPB administers 19 statutes while the FHFA administers
only 1; the CFPB regulates millions of individuals and
businesses whereas the FHFA regulates a small number of
Government-sponsored enterprises; the CFPB has broad
rulemaking and enforcement authority and the FHFA has
little; and the CFPB receives a large budget from the Fed-
eral Reserve while the FHFA collects roughly half the
amount from regulated entities.
We have noted differences between these two agencies.
See Seila Law, 591 U. S., at 222 (majority opinion) (noting that
the FHFA “regulates primarily Government-sponsored en-
terprises, not purely private actors”). But the nature and
breadth of an agency's authority is not dispositive in determin-
ing whether Congress may limit the President's power to re-
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move its head. The President's removal power serves vital
pur
poses even when the offcer subject to removal is not the
head of one of the largest and most powerful agencies. The
removal power helps the President maintain a degree of con-
trol over the subordinates he needs to carry out his duties
as the head of the Executive Branch, and it works to ensure
that these subordinates serve the people effectively and in
accordance with the policies that the people presumably
elected the President to promote. See, e. g., id., at 213–215;
Free Enterprise Fund, 561 U. S., at 501–502; Myers v.
United States, 272 U. S. 52, 131 (1926). In addition, because
the President, unlike agency offcials, is elected, this control
is essential to subject Executive Branch actions to a degree
of electoral accountability. See Free Enterprise Fund, 561
U. S., at 497–498. At-will removal ensures that “the lowest
offcers, the middle grade, and the highest, will depend, as
they ought, on the President, and the President on the com-
munity.” Id., at 498 (quoting 1 Annals of Cong. 499 (1789)
(J. Madison)). These purposes are implicated whenever an
agency does important work, and nothing about the size or
role of the FHFA convinces us that its Director should be
treated differently from the Director of the CFPB. The test
that amicus proposes would also lead to severe practical
problems. Amicus does not propose any clear standard to
distinguish agencies whose leaders must be removable at will
from those whose leaders may be protected from at-will re-
moval. This case is illustrative. As amicus points out, the
CFPB might be thought to wield more power than the
FHFA in some respects. But the FHFA might in other re-
spects be considered more powerful than the CFPB.
For example, the CFPB's rulemaking authority is more
constricted. Under the Dodd-Frank Act, the CFPB's fnal
rules can be set aside by a super majority of the Financial
Stability and Oversight Council whenever it concludes that
the rule would “ `put the safety and soundness' ” of the Na-
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253
Opinion of the Court
tion's banking or fnancial systems at risk. See Seila Law,
sup
ra, at 226, n. 9 (quoting 12 U. S. C. §§ 5513(a), (c)(3)). No
board or commission can set aside the FHFA's rules.
In addition, while the CFPB has direct regulatory and
enforcement authority over purely private individuals and
businesses, the FHFA has regulatory and enforcement au-
thority over two companies that dominate the secondary
mortgage market and have the power to reshape the housing
sector. See App. 116. FHFA actions with respect to those
companies could have an immediate impact on millions of
private individuals and the economy at large. See Seila
Law, supra, at 290 (Kagan, J., concurring in judgment with
respect to severability and dissenting in part) (noting that
“the FHFA plays a crucial role in overseeing the mortgage
market, on which millions of Americans annually rely”).
Courts are not well-suited to weigh the relative impor-
tance of the regulatory and enforcement authority of dispar-
ate agencies, and we do not think that the constitutionality
of removal restrictions hinges on such an inquiry.
19
2
Amicus next contends that Congress may restrict the re-
moval of the FHFA Director because when the Agency steps
19
Amicus argues that there is historical support for the removal restric-
tion at issue here because the Comptroller of Currency and the members
of the Sinking Fund Commission were subject to similar protection, but
those agencies are materially different because neither of them operated
beyond the President's control, and one of them was led by a multi-
member Commission. As we explained in Seila Law, with the exception
of a 1-year aberration during the Civil War, the Comptroller was remov-
able at will by the President, who needed only to communicate the reasons
for his decision to Congress. 591 U. S., at 221, n. 5. And the Sinking
Fund Commission, which Congress created to purchase U. S. securities
following the Revolutionary War, was run by a 5-member Commission,
and three of those Commissioners were part of the President's Cabinet
and therefore removable at will. See An Act Making Provision for the
Reduction of the Public Debt, ch. 47, 1 Stat. 186 (1790).
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into the shoes of a regulated entity as its conservator or re-
ceiver
, it takes on the status of a private party and thus does
not wield executive power. But the Agency does not always
act in such a capacity, and even when it acts as conservator
or receiver, its authority stems from a special statute, not
the laws that generally govern conservators and receivers.
In deciding what it must do, what it cannot do, and the stand-
ards that govern its work, the FHFA must interpret the Re-
covery Act, and “[i]nterpreting a law enacted by Congress
to implement the legislative mandate is the very essence of
`execution' of the law.” Bowsher, 478 U. S., at 733; see also
id., at 765 (White, J., dissenting) (“[T]he powers exercised
by the Comptroller under the Act may be characterized as
`executive' in that they involve the interpretation and carry-
ing out of the Act's mandate”).
Moreover, as we have already mentioned, see supra, at
230–231, the FHFA's powers under the Recovery Act differ
critically from those of most conservators and receivers. It
can subordinate the best interests of the company to its own
best interests and those of the public. See 12 U. S. C.
§ 4617(b)(2)(J)(ii). Its business decisions are protected from
judicial review. § 4617(f ). It is empowered to issue a “reg-
ulation or order” requiring stockholders, directors, and off-
cers to exercise certain functions. § 4617(b)(2)(C). It is
authorized to issue subpoenas. § 4617( b)(2)(I). And of
course, it has the power to put the company into conserva-
torship and simultaneously appoint itself as conservator.
§ 4617(a)(1). For these reasons, the FHFA clearly exercises
executive power.
20
20
Amicus claims that O'Melveny & Myers v. FDIC, 512 U. S. 79 (1994),
supports his argument, but that decision is far afeld. It held that state
law, not federal common law, governed an attribute of the FDIC's status
as receiver for an insolvent savings bank. Id., at 81–82. The nature of
the FDIC's authority in that capacity sheds no light on the nature of the
FHFA's distinctive authority as conservator under the Recovery Act.
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Opinion of the Court
3
Ami
cus asserts that the FHFA's structure does not violate
the separation of powers because the entities it regulates are
Government-sponsored enterprises that have federal char-
ters, serve public objectives, and receive “ `special privi-
leges' ” like tax exemptions and certain borrowing rights.
Brief for Court-Appointed Amicus Curiae 27–28. In ami-
cus's view, the individual-liberty concerns that the removal
power exists to preserve “ring hollow where the only entities
an agency regulates are themselves not purely private
actors.” Id., at 29 (internal quotation marks omitted).
Th is arg ument fai ls because the President's remova l
power serves important purposes regardless of whether the
agency in question affects ordinary Americans by directly
regulating them or by taking actions that have a profound
but indirect effect on their lives. And there can be no ques-
tion that the FHFA's control over Fannie Mae and Freddie
Mac can deeply impact the lives of millions of Americans by
affecting their ability to buy and keep their homes.
4
Finally, amicus contends that there is no constitutional
problem in this case because the Recovery Act offers only
“modest [tenure] protection.” Id., at 37. That is so, amicus
claims, because the for-cause standard would be satisfed
whenever a Director “disobey[ed] a lawful [Presidential]
order,” including one about the Agency's policy discretion.
Id., at 41.
We acknowledge that the Recovery Act's “for cause”
restriction appears to give the President more removal au-
thority than other removal provisions reviewed by this
Court. See, e. g., Seila Law, 591 U. S., at 207 (“for `ineff-
ciency, neglect of duty, or malfeasance in offce' ”); Morrison,
487 U. S., at 663 (“ `for good cause, physical disability, mental
incapacity, or any other condition that substantially impairs
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LINS v. YELLEN
Opinion of the Court
the performance of [his or her] duties' ”); Bowsher, supra, at
728
(“by joint resolution of Congress” due to “ `permanent
disability,' ” “ `ineffciency,' ” “ `neglect of duty,' ” “ `malfea-
sance,' ” “ `a felony[,] or conduct involving moral turpitude' ”);
Humphrey's Executor v. United States, 295 U. S. 602, 619
(1935) (“ ` “for ineffciency, neglect of duty, or malfeasance in
offce” ' ”); Myers, 272 U. S., at 107 (“ `by and with the advice
and consent of the Senate' ”). And it is certainly true that
disobeying an order is generally regarded as “cause” for re-
moval. See NLRB v. Electrical Workers, 346 U. S. 464, 475
(1953) (“The legal principle that insubordination, disobedi-
ence or disloyalty is adequate cause for discharge is plain
enough”).
But as we explained last Term, the Constitution prohibits
even “modest restrictions” on the President's power to re-
move the head of an agency with a single top offcer. Seila
Law, supra, at 228 (internal quotation marks omitted). The
President must be able to remove not just offcers who dis-
obey his commands but also those he fnds “negligent and
ineffcient,” Myers, 272 U. S., at 135, those who exercise their
discretion in a way that is not “intelligen[t] or wis[e],” ibid.,
those who have “different views of policy,” id., at 131, those
who come “from a competing political party who is dead set
against [the President's] agenda,” Seila Law, supra, at 225
(emphasis deleted), and those in whom he has simply lost
confdence, Myers, supra, at 124. Amicus recognizes that
“ `for cause' . . . does not mean the same thing as `at will,' ”
Brief for Court-Appointed Amicus Curiae 44–45, and there-
fore the removal restriction in the Recovery Act violates the
separation of powers.
21
21
Amicus warns that if the Court holds that the Recovery Act's removal
restriction violates the Constitution, the decision will “call into question
many other aspec ts of the Federa l Gover nment. ” Br ief for Cour t-
Appointed Amicus Curiae 47. Amicus points to the Social Security Ad-
ministration, the Offce of Special Counsel, the Comptroller, “multi-
member agencies for which the chair is nominated by the President and

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C
H
aving found that the removal restriction violates the
Constitution, we turn to the shareholders' request for relief.
And because the shareholders no longer have a live claim
for prospective relief, see supra, at 244, the only remaining
remedial question concerns retrospective relief.
On this issue, the shareholders' lead argument is that the
third amendment must be completely undone. They seek an
order setting aside the amendment and requiring the “return
to Fannie and Freddie [of] all dividend payments made pur-
suant to [it].”
22
App. 117–118. In support of this request,
they contend that the third amendment was adopted and im-
plemented by offcers who lacked constitutional authority
and that their actions were therefore void ab initio.
We have already explained that the Acting Director who
adopted the third amendment was removable at will. See
supra, at 247–250. That conclusion defeats the shareholders'
argument for setting aside the third amendment in its entirety.
We therefore consider the shareholders' contention about
remedy with respect to only the actions that confrmed Di-
rectors have taken to implement the third amendment dur-
ing their tenures. But even as applied to that subset of ac-
tions, the shareholders' argument is neither logical nor
supported by precedent. All the offcers who headed the
FHFA during the time in question were properly appointed.
Although the statute unconstitutionally limited the Presi-
dent's authority to remove the confrmed Directors, there
was no constitutional defect in the statutorily prescribed
method of appointment to that offce. As a result, there is
confrmed by the Senate to a fxed term,” and the Civil Service. Id., at
48 (emphasis deleted). None of these agencies is before us, and we do not
comment on the constitutionality of any removal restriction that applies
to their offcers.
22
In the alternative, they request that the dividend payments be “re-
characteriz[ed] . . . as a pay down of the liquidation preference and a corre-
sponding redemption of Treasury's Government Stock.” App. 118.
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no reason to regard any of the actions taken by the FHFA
i
n relation to the third amendment as void.
The shareholders arg ue that our decisi ons i n pr i or
separation-of-powers cases support their position, but most
of the cases they cite involved a Government actor's exercise
of power that the actor did not lawfully possess. See Lucia
v. SEC, 585 U. S. 237, 251 (2018) (administrative law judge
appointed in violation of Appointments Clause); Stern v.
Marshall, 564 U. S. 462, 503 (2011) (bankruptcy judge's exer-
cise of exclusive power of Article III judge); Clinton v. City
of New York, 524 U. S. 417, 425, and n. 9, 438 (1998) (Presi-
dent's cancellation of individual portions of bills under the
Line Item Veto Act); Chadha, 462 U. S., at 952–956 (one-
house veto of Attorney General's determination to suspend
an alien's deportation); Youngstown, 343 U. S., at 585, 587–
589 (Presidential seizure and operation of steel mills). As
we have explained, there is no basis for concluding that any
head of the FHFA lacked the authority to carry out the func-
tions of the offce.
23
The shareholders claim to fnd implicit support for their
argument in Seila Law and Bowsher, but they read far too
much into those decisions. In Seila Law,
24
after holding
that the restriction on the removal of the CFPB Director
23
Settled precedent also confrms that the unlawfulness of the removal
provision does not strip the Director of the power to undertake the other
responsibilities of his offce, including implementing the third amendment.
See, e. g., Seila Law, 591 U. S., at 232–238 (opinion of Roberts, C. J.).
24
What we said about standing in Seila Law should not be misunder-
stood as a holding on a party's entitlement to relief based on an unconstitu-
tional removal restriction. We held that a plaintiff that challenges a
statutory restriction on the President's power to remove an executive offcer
can establish standing by showing that it was harmed by an action that was
taken by such an offcer and that the plaintiff alleges was void. See 591
U. S., at 211–212 (majority opinion). But that holding on standing does not
mean that actions taken by such an offcer are void ab initio and must be
undone. Compare post, at 276–277 (Gorsuch, J., concurring in part).
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Opinion of the Court
was unconstitutional and severing that provision from the
rest
of the Dodd-Frank Act, we remanded the case so that
the lower courts could decide whether, as the Government
claimed, the Board's issuance of an investigative demand had
been ratifed by an Acting Director who was removable at
will by the President. See 591 U. S., at 238. The share-
holders argue that this disposition implicitly meant that the
Director's action would be void unless lawfully ratifed, but
we said no such thing. The remand did not resolve any issue
concerning ratifcation, including whether ratifcation was
necessary. And in Bowsher, after holding that the Gramm-
Rudman-Hollings Act unconstitutionally authorized the
Comptroller General to exercise executive power, the Court
simply turned to the remedy specifcally prescribed by Con-
gress. See 478 U. S., at 735.
25
We therefore see no reason
to hold that the third amendment must be completely
undone.
That does not necessarily mean, however, that the share-
holders have no entitlement to retrospective relief. Al-
though an unconstitutional provision is never really part of
the body of governing law (because the Constitution auto-
matically displaces any conficting statutory provision from
the moment of the provision's enactment), it is still possible
for an unconstitutional provision to infict compensable harm.
And the possibility that the unconstitutional restriction on
the President's power to remove a Director of the FHFA
could have such an effect cannot be ruled out. Suppose,
for example, that the President had attempted to remove a
Director but was prevented from doing so by a lower court
decision holding that he did not have “cause” for removal.
25
In addition, the constitutional defect in Bowsher was different from
the defect here. In Bowsher, the Comptroller General, whom Congress
had long viewed as “an offcer of the Legislative Branch,” 478 U. S., at 731,
was vested with executive power. Here, the FHFA Director is clearly an
executive offcer. See post, at 265–266 (Thomas, J., concurring).
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Or suppose that the President had made a public statement
expressi
ng displeasure with actions taken by a Director and
had asserted that he would remove the Director if the stat-
ute did not stand in the way. In those situations, the statu-
tory provision would clearly cause harm.
In the present case, the situation is less clear-cut, but the
shareholders nevertheless claim that the unconstitutional re-
moval provision inficted harm. Were it not for that provi-
sion, they suggest, the President might have replaced one of
the confrmed Directors who supervised the implementation
of the third amendment, or a confrmed Director might have
altered his behavior in a way that would have benefted the
shareholders.
The federal parties dispute the possibility that the uncon-
stitutional removal restriction caused any such harm. They
argue that, irrespective of the President's power to remove
the FHFA Director, he “retained the power to supervise the
[Third] Amendment's adoption . . . because FHFA's counter-
party to the Amendment was Treasury—an executive de-
partment led by a Secretary subject to removal at will by
the President.” Reply Brief for Federal Parties 43. The
parties' arguments should be resolved in the frst instance
by the lower courts.
26
26
The lower courts may also consider all issues related to the federal
parties' argument that the doctrine of laches precludes any relief. The
federal parties argue that Treasury was prejudiced by the shareholders'
delay in fling suit because, for some time after the third amendment was
adopted, there was a chance that it would beneft the shareholders. Ac-
cording to the federal parties, the shareholders waited to fle suit until it
became apparent that the third amendment would not have that effect.
The shareholders respond that laches is inapplicable because they fled
their complaint within the time allowed by the statute of limitations, and
they argue that their delay did not cause prejudice because it was “mathe-
matically impossible” for Treasury to make less money under the third
amendment than under the prior regime. Reply Brief for Collins et al.
4–5 (emphasis deleted). We decline to decide this fact-bound question in
the frst instance.
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Thomas, J., concurring
***
The
judgment of the Court of Appeals is affrmed in part,
reversed in part, and vacated in part, and the case is re-
manded for further proceedings consistent with this opinion.
It is so ordered.
Justice Thomas, concurring.
I join the Court's opinion in full. I agree that the Direc-
tors were properly appointed and could lawfully exercise
executive power. And I agree that, to the extent a Govern-
ment action violates the Constitution, the remedy should ft
the injury. But I write separately because I worry that
the Court and the parties have glossed over a fundamental
problem with removal-restriction cases such as these: The
Government does not necessarily act unlawfully even if a
removal restriction is unlawful in the abstract.
I
As discussed in more detail by the Court, Congress cre-
ated the Federal Housing Finance Agency (FHFA) in 2008.
Housing and Economic Recovery Act of 2008, 12 U. S. C.
§ 4501 et seq. The FHFA is “an independent agency.”
§ 4511(a). Among other things, it supervises and regulates
Fannie Mae and Freddie Mac, two companies created by
Congress to provide liquidity and stability to the mortgage
market. See § 4511(b). In the midst of the 2008 fnancial
crisis, the FHFA's Director exercised his statutory authority
under § 4617(a)(1) to appoint the Agency as conservator of
Fannie Mae and Freddie Mac. As conservator, the Agency
in effect had full control over the companies.
The FHFA used this control to have the companies enter
into several agreements with the Treasury Department to
secure fnancing to keep both companies afoat. Relevant
here, the FHFA and Treasury sig ned two agreements,
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known as the Third Amendments, requiring the companies
to
pay a quarterly dividend to Treasury of nearly all their
net worth minus a predetermined capital reserve.
Shareholders of the companies sued the FHFA, the Direc-
tor, Treasury, and the Secretary of the Treasury. They
advanced four theories about why the adoption and enforce-
ment of the Third Amendments violated the law: (1) The
FHFA's conduct exceeded its statutory authority; (2) Treas-
ury's conduct exceeded its statutory authority; (3) Treasury's
conduct was arbitrary and capricious; and (4) the FHFA's
structure violated the “Separation of Powers” because the
President could fre the FHFA Director only “for cause.”
App. 116–117; § 4512(b)(2).
The District Court rejected their claims. The Fifth Cir-
cuit affrmed the dismissal of claims two and three, and the
shareholders did not seek review of that decision. The Fifth
Circuit reinstated the statutory claim, but today we correctly
reverse that decision. Ante, at 237–242. The Fifth Circuit
also held that the shareholders are entitled to judgment on
the separation-of-powers claim. Collins v. Mnuchin, 938
F. 3d 553, 587 (2019)
II
For the shareholders to prevail, identifying some confict
between the Constitution and a statute is not enough. They
must show that the challenged Government action at issue—
the adoption and implementation of the Third Amendment—
was, in fact, unlawful. See California v. Texas, 593 U. S.
659, 668–673 (2021). Modern standing doctrine refects this
principle: To have standing, a plaintiff must allege an injury
traceable to an “allegedly unlawful” action (or threatened ac-
tion) and seek a remedy to redress that action. Allen v.
Wright, 468 U. S. 737, 751 (1984); accord, Virginia v. Ameri-
can Booksellers Assn., Inc., 484 U. S. 383, 392 (1988); contra,
938 F. 3d, at 586 (tracing injury to the removal restriction).
Here, before a court can provide relief, it must conclude that
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either the adoption or implementation of the Third Amend-
ment
was unlawful.
1
The parties simply assume that the lawfulness of agency
action turns on the lawfulness of the removal restriction.
Our recent precedents have not clearly questioned this
premise, and on this premise, the Court correctly resolves
the remaining legal issues. But in the future, parties and
courts should ensure not only that a provision is unlawful
but also that unlawful action was taken.
This suit provides a good example. The shareholders
largely neglect the issue of lawfulness to focus on remedy,
but their briefng appears premised on several theories of
unlawfulness.
2
First, that the removal restriction renders
1
Another limit on the judicial power is relevant: A party seeking relief
must have a legal right to redress. See Cohens v. Virginia, 6 Wheat. 264,
405 (1821) (explaining that Article III “does not extend the judicial power
to every violation of the constitution which may possibly take place”).
The judicial power extends only “to `a case in law or equity,' in which a
right, under such law, is asserted.” Ibid. We have indicated that indi-
viduals may have an implied private right of action under the Constitution
to seek equitable relief to “ `preven[t] entities from acting unconstitution-
ally.' ” Free Enterprise Fund v. Public Company Accounting Oversight
Bd., 561 U. S. 477, 491, n. 2 (2010). This includes “Appointments Clause
or separation-of-powers claim[s].” Ibid. I assume the shareholders have
brought such a cause of action here and have a legal right to obtain equita-
ble relief if they can show they suffered an injury traceable to a Govern-
ment action that violates the Constitution. The shareholders did not raise
the Administrative Procedure Act (APA) in count four of their complaint,
but now contend their “constitutional claim is cognizable under the APA,”
which permits a “ `reviewing court [to] hold unlawful and set aside agency
action found to be contrary to constitutional right, power, privilege, or
immunity.' ” Brief for Collins et al. 74 (quoting 5 U. S. C. § 706; ellipses
omitted; emphasis in original). Even assuming they raised their constitu-
tional claim under the APA, it would not change the analysis; the
shareholders would need to show they suffered an injury traceable to a
Government action that violates the Constitution.
2
Because the shareholders allege the Government acted unlawfully, be-
cause their alleged injury can be traced to those allegedly unlawful ac-

264 COL
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Thomas, J., concurring
all Agency actions void because the Directors serve in viola-
ti
on of the Constitution's structural provisions, similar to
Appointments Clause cases, see Lucia v. SEC, 585 U. S.
237, 251 (2018) (holding that an Administrative Law Judge
was unlawfully appointed), and other separation-of-powers
cases, e. g., Bowsher v. Synar, 478 U. S. 714, 727–736 (1986)
(holding that the Comptroller General was not an executive
offcer and could not exercise executive power granted to
him by statute). Second, that even if the Director is in the
Executive Branch and the removal restriction is just unen-
forceable, the mere existence of the law somehow taints all
of the Director's actions. Third, that “when FHFA's single
Director exercises Executive Power without meaningful
oversight from the President, he exercises authority that
was never properly his.” Brief for Collins et al. 64.
Fourth, that the statutory provision that gave the Director
the power to adopt and implement the Third Amendments
must fall if the statutory removal restriction is unlawful.
§ 4617(b)(2)(J)(ii).
As the Court's reasoning makes clear, however, all these
theories appear to fail on the merits.
A
I begin with whether the FHFA Director may lawfully
exercise executive authority. The shareholders suggest
that the removal restriction inherently renders the Agency's
actions void. In support, they point to our Appointments
Clause cases and our other separation-of-powers cases. But
the cases on which they rely prove quite the opposite.
Consider our separation-of-powers cases, which set out a
two-part analysis to determine whether an offcial can law-
fully exercise a statutory power at all. First, we ask in
what branch (if any) an offcial is located. Second, we deter-
tions, and because this Court might be able to redress that injury, I agree
with the Court that they have standing. See Steel Co. v. Citizens for
Better Environment, 523 U. S. 83, 89 (1998).
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mine whether the statutory power possessed by the offcial
belongs
to that branch. In Bowsher, the Court determined
that the Comptroller General of the United States was “an
offcer of the Legislative Branch” based on other statutes
dating back to 1945 declaring him as such, the expressed
views of other Comptrollers General, the fact that only Con-
gress could remove the Comptroller General, and the struc-
ture of the offce. 478 U. S., at 727–732. In light of this
legislative identity, the Court held the Comptroller General
could not lawfully exercise executive powers assigned to him
by statute. Id., at 732–735.
3
Assuming the shareholders raise a Bowsher-type argu-
ment, I agree with the Court that the FHFA Director is
an executive offcial who can lawfully “carry out the func-
tions of the offce.” Ante, at 258–259, and n. 25 (discussing
Bowsher). The statutory scheme creates a common type of
executive offcer—an individual nominated by the President
and confrmed by the Senate, who heads an agency exercis-
ing executive powers and who reports to the President.
The only statutory powers assigned to the Director are exec-
utive. No party contends the offce of the FHFA Director
is a nonexecutive offce. No statute refers to him as a non-
executive offcer. And the statutory scheme recognizes that
3
See also Stern v. Marshall, 564 U. S. 462, 503 (2011) (bankruptcy
judges, as Article I offcers, cannot exercise exclusive Article III power);
Clinton v. City of New York, 524 U. S. 417, 438–441, 448–449 (1998) (the
President, an Article II offcer, cannot exercise Article I line-item-veto
power); Morrison v. Olson, 487 U. S. 654, 677–679 (1988) (a law cannot
give a court powers that violated Article III); Glidden Co. v. Zdanok, 370
U. S. 530, 584 (1962) (plurality opinion) (concluding after exhaustive analy-
sis that two courts were Article III courts); id., at 585–588 (Clark, J.,
concurring in result) (agreeing “in light of the congressional power exer-
cised and the jurisdiction enjoyed, together with the characteristics of its
judges”); American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546 (1828)
(a territorial court is an Article I court and admiralty jurisdiction can be
exercised only by Article III courts, but Article IV removes this limitation
with respect to the Territories).
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the President can remove the offcer (but only “for cause”).
§
4512(b)(2). In fact, the Court concludes that the removal
restriction is unconstitutional in part because the FHFA
Director is an executive offcer whom the President needs to
be able to control. See ante, at 250–256.
Our cases demonstrate that the existence of a removal re-
striction, without more, usually does not take an otherwise
executive offcer outside the Executive Branch. True, stat-
utory provisions governing who can remove an offcer (and
when) can provide evidence of the branch to which that off-
cer belongs. E. g., Bowsher, 478 U. S., at 727–728, and n. 5;
American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 546
(1828). But they generally are not dispositive. In many
cases, it is obvious that the offcer is executive, and it is the
removal restriction—not the offcer's exercise of executive
powers—that is the problem. E. g., Free Enterprise Fund
v. Public Company Accounting Oversight Bd., 561 U. S. 477,
492–508 (2010) (holding unconstitutional tenure provisions
protecting executive offcer, but concluding “the existence of
the Board does not violate the separation of powers”); cf.
Myers v. United States, 272 U. S. 52, 108, 176 (1926).
4
The Appointments Clause cases do not help the sharehold-
ers either. These cases also ask whether an offcer can law-
fully exercise the statutory power of his offce at all in light
of the rule that an offcer must be properly appointed before
he can legally act as an offcer. Lucia, 585 U. S., at 251;
Ryder v. United States, 515 U. S. 177, 182–183 (1995). Oth-
erwise, the offcial's authority to exercise the powers of the
4
I agree with Justice Gorsuch that a court must look at more than
the label to determine in what branch an offcer sits. Post, at 277, n. 1
(opinion concurring in part). To answer this question, courts have histori-
cally looked at various factors. See n. 3, supra. Here, everything about
the Director's position, except the removal restriction, indicates he is an
executive offcer. See also ante, at 259, n. 25 (opinion of the Court). As the
Court correctly explains, “the removal restriction . . . violates the separation
of powers” because the Director is an executive offcer. Ante, at 256.
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offce generally is legally defcient. Id., at 179, 182–183.
H
ere, “[a]ll the offcers who headed the FHFA during the
time in question were properly appointed.” Ante, at 257.
There is thus no barrier to them exercising power in the
frst instance.
B
The mere existence of an unconstitutional removal provi-
sion, too, generally does not automatically taint Government
action by an offcial unlawfully insulated. It is true the
removal restriction here is unlawful. But while the share-
holders are correct that the Constitution authorizes the
President to dismiss the FHFA Director for any reason, no
statute can take that Presidential power away. See Seila
Law LLC v. Consumer Financial Protection Bureau, 591
U. S. 197, 252 (2020) (Thomas, J., concurring in part and dis-
senting in part) (“In the context of a constitutional challenge,
. . . if a party argues that a statute and the Constitution
confict, then courts must resolve that dispute and . . . follow
the higher law of the Constitution” (internal quotation marks
omitted)); ante, at 259–260.
That the Constitution automatically trumps an inconsist-
ent statute creates a paradox for the shareholders. Had the
removal restriction not conficted with the Constitution, the
law would never have unconstitutionally insulated any Direc-
tor. And while the provision does confict with the Consti-
tution, the Constitution has always displaced it and the Pres-
ident has always had the power to fre the Director for any
reason. So regardless of whether the removal restriction
was lawful or not, the President always had the legal power
to remove the Director in a manner consistent with the Con-
stitution.
5
Brief for Harrison as Amicus Curiae 15–16.
5
In Seila Law, the Court did not address whether an offcer acts unlaw-
fully if protected by an unlawful removal restriction. See ante, at 258–259,
and nn. 23–24. That is because the Government in effect conceded the
issue. Seila Law, 591 U. S., at 232 (plurality opinion); id., at 254 (opinion of

268 COL
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Moreover, no Director has ever purported to occupy the
offce
and exercise its powers despite a Presidential attempt
at removal. No court, for example, has enjoined an attempt
by the President to remove the Director.
6
So every Direc-
tor is a lawfully appointed executive offcer whom the Presi-
dent may remove in a manner consistent with the Constitu-
tion but did not attempt to do so.
C
Another possible theory the shareholders seem to rely on
is that a misunderstanding about the correct state of the law
makes an otherwise constitutional action unconstitutional.
Thus, if the President or Director misunderstood the cir-
cumstances under which the President could have removed
the D irec tor, then that creates a defec t i n author ity.
But nothing in the Constitution, history, or our case law sup-
ports this expansive view of unlawfulness. The Constitu-
tion does not transform unfamiliarity with the Vesting Clause
Thomas, J.). Perhaps we should have addressed it then. Post, at 280–
281, n. 2 (opinion of Gorsuch, J.).
I continue to adhere to the views that I expressed in Seila Law: A
combination of statutes can produce a separation-of-powers violation that
renders Government action unlawful. See 591 U. S., at 258 (opinion con-
curring in part and dissenting in part). In remedying such a separation-
of-powers violation, courts cannot purport to rewrite the statute to avoid
the violation. Ibid.; post, at 281, n. 2 (opinion of Gorsuch, J.) (“[W]e
cannot divine `which of the provisions' Congress would have kept and
which it would have scrapped . . . had it known its actual choice was
unconstitutional,” “absent statutory direction from Congress”). How-
ever, I respectfully part ways with Justice Gorsuch, because, on the
merits, I am uncertain whether the unlawful removal restriction here com-
bines with any other statutory provision in a way that renders the Govern-
ment action at issue unlawful.
6
A removal restriction may unconstitutionally insulate an offcer such
that his actions are unlawful. If the President tries to remove an offcial
but a court blocks this action, then that offcial is not lawfully occupying
his offce and would likely be acting without authority. Cf. ante, at 259.
But that circumstance has not arisen here.
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Thomas, J., concurring
into a legal violation when an executive offcer acts with
author
ity.
7
Perhaps the better understanding of this argument is the
Director might have acted differently if he knew that he
served at the pleasure of the President. That may be true,
but it is not enough for a party to show that an offcial acted
differently because he or another offcial incorrectly inter-
preted the Vesting Clause—the party must show that the
offcial acted unlawfully. If the President vetoed a bill on
the ground that he believed it to be unconstitutional, this
Court could not undo that lawful act simply because an in-
jured plaintiff persuasively establishes that the President
was mistaken.
Sure enough, we have not held that a misunderstanding
about authority results in a constitutional defect where the
action was otherwise lawful. Absent such authority in a
“constitutional cas[e], our watchword [should be] caution.”
Hernández v. Mesa, 589 U. S. 93, 101 (2020). We should be
reluctant to create a new restriction on a coequal branch and
enforce it through a new private right of action. Id., at 101–
102. Doing so places great stress upon “the Constitu-
tion's separation of legislative and judicial power.” Id., at
100.
Seila Law and Free Enterprise do not help the sharehold-
ers on the lawfulness of the Government actions question.
Ante, at 243, 258–259. In Seila Law, the Government in
effect “conceded that [its] actions were unconstitutional” if the
7
The APA might permit this type of lawsuit in allowing an individual
to challenge an agency action as “arbitrary, capricious, an abuse of discre-
tion, or otherwise not in accordance with law.” 5 U. S. C. § 706(2)(A).
There is a colorable argument that a Government offcial's misunderstand-
ing about the scope of the President's removal authority would render
an agency action arbitrary or capricious in certain cases. However, the
shareholders did not bring this constitutional challenge as an arbitrary
and capricious claim against the FHFA. And if they had, we would need
to consider the interaction between this statutory claim and the Act's anti-
injunction provision. Cf. ante, at 237.
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removal restriction was unconstitutional. 591 U. S., at 255
(
opinion of Thomas, J.). So the Court assumed “that [peti-
tioner] `sustain[ed] injury' from an executive act that alleg-
edly exceeds the offcial's authority.” Id., at 211; ante, at
258–259. In Free Enterprise, we considered a similar chal-
lenge to a removal restriction without questioning the plain-
tiffs' standing “where plaintiffs claimed injury from allegedly
unlawful agency oversight.” Ante, at 243. And then we as-
sumed that the agency lacked the authority to act lawfully if
the removal restriction there were invalid.
D
The shareholders' briefng strongly implies one fnal argu-
ment: The statutory provision giving the FHFA the power
to act as conservator, 12 U. S. C. § 4617(b)(2)(J)(ii), cannot
be severed from the removal restriction. Brief for Collins
et al. 77–79. Thus, the argument goes, if the removal provi-
sion is unlawful, then § 4617(b)(2)( j)(ii) is too and the FHFA
Directors acted without statutory authority.
Assuming that the unlawfulness of one provision can cause
another to be unlawful, this inquiry is just a question of
statutory interpretation. See Seila Law, 591 U. S., at 257
(opinion of Thomas, J.); Lea, Situational Severability, 103 Va.
L. Rev. 735, 764–776 (2017). The Recovery Act contains no
inseverability clause. Contra, 4 U. S. C. § 125 (inseverability
clause). Nor does it contain any fallback provision stating
that § 4617(b)(2)( j)(ii) should be altered if the removal clause
is found unlawful. Without something in the statutory text
or structure to show that § 4617(b)(2)( j)(ii)'s lawfulness rises
or falls based on the removal restriction, this argument is
also unconvincing.
***
I do not understand the parties to have sought review of
these issues in this Court. So the Court correctly resolves
the legal issues presented. That being said, I seriously
doubt that the shareholders can demonstrate that any rele-
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vant action by an FHFA Director violated the Constitution.
And,
absent an unlawful act, the shareholders are not en-
titled to a remedy. The Fifth Circuit can certainly consider
this issue on remand.
Justice Kagan, w ith whom Justice Breyer and
Justice Sotomayor join as to Part II, concurring in part
and concurring in the judgment.
Faced with a global fnancial crisis, Congress created the
Federal Housing Finance Agency (FHFA) and gave it broad
powers to rescue the Nation's mortgage market. I join the
Court in deciding that the FHFA wielded its authority
within statutory limits. On the main constitutional ques-
tion, though, I concur only in the judgment. Stare decisis
compels the conclusion that the FHFA's for-cause removal
provision violates the Constitution. But the majority's
opinion rests on faulty theoretical premises and goes further
than it needs to. I also write to address the remedial ques-
tion. The majority's analysis, which I join, well explains
why backwards-looking relief is not always necessary to re-
dress a removal violation. I add only two thoughts. The
broader is that the majority's remedial holding mitigates the
harm of the removal doctrine applied here. The narrower
is that, as I read the decision below, the Court of Appeals
has already done what is needed to fnd that the plaintiffs
are not entitled to their requested relief.
I
I agree with the majority that Seila Law LLC v. Con-
sumer Financial Protection Bureau, 591 U. S. 197 (2020),
governs the constitutional question here. See ante, at 250.
In Seila Law, the Court held that an “agency led by a single
[d]irector and vested with signifcant executive power” com-
ports with the Constitution only if the President can fre the
director at will. 591 U. S., at 220. I dissented from that
decision—vehemently. See id., at 264 (Kagan, J., dissent-

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ing) (“The text of the Constitution, the history of the coun-
try
, the precedents of this Court, and the need for sound
and adaptable governance—all stand against the majority's
opinion”). But the “doctrine of stare decisis requires us, ab-
sent special circumstances, to treat like cases alike”—even
when that means adhering to a wrong decision. June Medi-
cal Services L. L. C. v. Russo, 591 U. S. 299, 345 (2020)
(Roberts, C. J., concurring in judgment). So the issue now
is not whether Seila Law was correct. The question is
whether that case is distinguishable from this one. And it
is not. As I observed in Seila Law, the FHFA “plays a cru-
cial role in overseeing the mortgage market, on which mil-
lions of Americans annually rely.” 591 U. S., at 290. It
thus wields “signifcant executive power,” much as the
agency in Seila Law did. And I agree with the majority
that there is no other legally relevant distinction between
the two. See ante, at 253–256.
For two reasons, however, I do not join the majority's dis-
cussion of the constitutional issue. First is the majority's
political theory. Throughout the relevant part of its opinion,
the majority offers a contestable—and, in my view, deeply
fawed—account of how our government should work. At-
will removal authority, the majority intones, “is essential to
subject Executive Branch actions to a degree of electoral
accountability”—and so courts should grant the President
that power in cases like this one. Ante, at 252. I see the
matter differently (as, I might add, did the Framers). Seila
Law, 591 U. S., at 269–273 (Kagan, J., dissenting). The
right way to ensure that government operates with “elec-
toral accountability” is to lodge decisions about its structure
with, well, “the branches accountable to the people.” Id.,
at 298; see ibid. (the Constitution “instructs Congress, not
this Court, to decide on agency design”). I will subscribe
to decisions contrary to my view where precedent, fairly
read, controls (and there is no special justifcation for rever-
sal). But I will not join the majority's mistaken mus-
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ings about how to create “a workable government.” Id., at
297
(quoting Youngstown Sheet & Tube Co. v. Sawyer, 343
U. S. 579, 635 (1952) (Jackson, J., concurring)).
My second objection is to the majority's extension of Seila
Law's holding. Again and again, Seila Law emphasized that
its rule was limited to single-director agencies “wield[ing]
signifcant executive power.” 591 U. S., at 204 (plurality
opinion); see id., at 220 (majority opinion); id., at 238 (plural-
ity opinion). To take Seila Law at its word is to acknowl-
edge where it left off: If an agency did not exercise “signif-
cant executive power,” the constitutionality of a removal
restriction would remain an open question. Accord, post, at
293 (Sotomayor, J., concurring in part and dissenting in
part). But today's majority careens right past that bound-
ary line. Without even mentioning Seila Law's “signifcant
executive power” framing, the majority announces that, ac-
tually, “the constitutionality of removal restrictions” does
not “hinge[ ]” on “the nature and breadth of an agency's au-
thority.” Ante, at 251, 253. Any “agency led by a single
Director,” no matter how much executive power it wields,
now becomes subject to the requirement of at-will removal.
Ante, at 251. And the majority's broadening is gratuitous—
unnecessary to resolve the dispute here. As the opinion
later explains, the FHFA exercises plenty of executive au-
thority: Indeed, it might “be considered more powerful than
the CFPB.” Ante, at 252. So the majority could easily
have stayed within, rather than reached out beyond, the rule
Seila Law created.
In thus departing from Seila Law, the majority strays
from its own obligation to respect precedent. To ensure
that our decisions refect the “evenhanded” and “consistent
development of legal principles,” not just shifts in the
Court's personnel, stare decisis demands something of
Justices previously on the losing side. Payne v. Tennessee,
501 U. S. 808, 827 (1991). They (meaning here, I) must fairly
apply decisions with which they disagree. But fdelity to
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precedent also places demands on the winners. They must
apply
the Court's precedents—limits and all—wherever they
can, rather than widen them unnecessarily at the frst oppor-
tunity. Because today's majority does not conform to that
command, I concur in the judgment only.
II
I join in full the majority's discussion of the proper remedy
for the constitutional violation it fnds. I too believe that
our Appointments Clause precedents have little to say about
remedying a removal problem. See ante, at 258; cf. Lucia
v. SEC, 585 U. S. 237, 251 (2018) (requiring a new hearing
before a properly appointed offcial). As the majority ex-
plains, the offcers heading the FHFA, unlike those with in-
valid appointments, possessed the “authority to carry out the
functions of the offce.” Ante, at 258. I also agree that
plaintiffs alleging a removal violation are entitled to injunc-
tive relief—a rewinding of agency action—only when the
President's inability to fre an agency head affected the
complained-of decision. See ante, at 259–260. Only then is
relief needed to restore the plaintiffs to the position they
“would have occupied in the absence” of the removal prob-
lem. Milliken v. Bradley, 433 U. S. 267, 280 (1977); see D.
Laycock & R. Hasen, Modern American Remedies 275 (5th
ed. 2019). Granting relief in any other case would, contrary
to usual remedial principles, put the plaintiffs “in a better
position” than if no constitutional violation had occurred.
Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274, 285 (1977).
The majority's remedial holding limits the damage of the
Court's removal jurisprudence. As the majority explains,
its holding ensures that actions the President supports—
which would have gone forward whatever his removal
power—will remain in place. See ante, at 259–260. In re-
fusing to rewind those presidentially favored decisions, the
majority prevents theories of formal presidential control from
stymying the President's real-world ability to carry out his
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agenda. Similarly, the majority's approach should help
protec
t agency decisions that would never have risen to
the President's notice. Consider the hundreds of thousands
of decisions that the Social Security Administration (SSA)
makes each year. The SSA has a single head with for-cause
removal protection; so a betting person might wager that the
agency's removal provision is next on the chopping block.
Cf. ante, at 256–257, n. 21. But given the majority's reme-
dial analysis, I doubt the mass of SSA decisions—which
would not concern the President at all—would need to be
undone. That makes sense. “[P]residential control [does]
not show itself in all, or even all important, regulation.”
Kagan, Presidential Administration, 114 Harv. L. Rev. 2245,
2250 (2001). When an agency decision would not capture a
President's attention, his removal authority could not make
a difference—and so no injunction should issue.
My fnal point relates to the last sentence of the majority's
remedial section. There, the Court holds that the decisive
question—whether the removal provision mattered—“should
be resolved in the frst instance by the lower courts.” Ante,
at 260. That remand follows the Court's usual practice: We
are, as we often say, not a “court of frst view.” Alabama
v. Shelton, 535 U. S. 654, 673 (2002). But here the lower
court proceedings may be brief indeed. As I read the opin-
ion below, the Court of Appeals already considered and de-
cided the issue remanded today. The court noted that all of
the FHFA's policies were jointly “created [by] the FHFA and
Treasury” and that the Secretary of the Treasury is “subject
to at will removal by the President.” Collins v. Mnuchin,
938 F. 3d 553, 594 (CA5 2019). For that reason, the court
concluded, “we need not speculate about whether appro-
pr iate presidentia l oversight wou ld have stopped” the
FHFA's actions. Ibid. “We know that the President, act-
ing through the Secretary of the Treasury, could have
stopped [them] but did not.” Ibid.; see ibid., n. 6 (noting
that the plaintiffs' “allegations show that the President had
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oversight of the action”). That reasoning seems suffcient
to
answer the question the Court kicks back, and nothing
prevents the Fifth Circuit from reiterating its analysis. So
I join the Court's opinion on the understanding that this
litigation could speedily come to a close.
Justice Gorsuch, concurring in part.
I agree with the Court on the merits and am pleased to
join nearly all of its opinion. I part ways only when it comes
to the question of remedy addressed in Part III–C.
As the Court observes, the only question before us con-
cerns retrospective relief. Ante, at 257. By the time we
turn to that question, the plaintiffs have proven that the
Director was without constitutional authority when he took
the challenged actions implementing the Third Amendment.
In response to such a showing, a court would normally set
aside the Director's ultra vires actions as “contrary to consti-
tutional right,” 5 U. S. C. § 706(2)(B), subject perhaps to con-
sideration of traditional remedial principles such as laches.
See ante, at 260, n. 26; Abbott Laboratories v. Gardner, 387
U. S. 136, 155 (1967). Because the Court of Appeals did not
follow this course, this Court would normally vacate the
judgment in this suit with instructions requiring the Court
of Appeals to conform its judgment to traditional practice.
Today, the Court acknowledges it has taken exactly this
course in cases involving unconstitutionally appointed execu-
tive offcials. Ante, at 258–259.
Still, the Court submits, we should treat this suit differ-
ently because the Director was unconstitutionally insulated
from removal rather than unconstituti onally appointed.
Ibid.; see also ante, at 267 (Thomas, J., concurring). It is
unclear to me why this distinction should make a difference.
Either way, governmental action is taken by someone erro-
neously claiming the mantle of executive power—and thus
taken with no authority at all. The Court points to not a
single precedent in 230 years of history for the distinction
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it would have us draw. Nor could it. The course it pursues
today
defes our precedents. In Bowsher v. Synar, 478 U. S.
714 (1986), this Court concluded that Congress had vested
the Comptroller General with “the very essence” of execu-
tive power, id., at 732–733, but that he was (impermissibly)
removable only by Congress, id., at 727–728. In Seila Law
LLC v. Consumer Financial Protection Bureau, 591 U. S.
197 (2020), we found Congress had assig ned the CFPB
Director sweeping authority over the fnancial sector, id., at
206–208, while insulating him “from removal by an account-
able President,” id., at 225. In both cases that meant the
offcers could “not be entrusted with executive powers” from
day one, Bowsher, 478 U. S., at 732, and the challenged ac-
tions were “void,” Seila Law, 591 U. S., at 211.
1
If anything, removal restrictions may be a greater consti-
tutional evil than appointment defects. New Presidents
always inherit thousands of Executive Branch offcials whom
1
The Court's attempt to sidestep these cases leads nowhere. Seila
Law, we are told, discussed standing—not remedies—when it said plain-
tiffs “ `sustai[n] injury' ” from unlawfully insulated executive action and
may “challeng[e such] action as void.” See ante, at 258, n. 24. But stand-
ing and remedies are joined at the hip: Article III permits a court only
to provide “a remedy that redresses the plaintiffs' injury-in-fact.” Col-
lins v. Mnuchin, 938 F. 3d 553, 609 (CA5 2019) (Oldham, J., concurring in
part and dissenting in part) (emphasis added). That is why a plaintiff
“must have standing [for] each form of relief ” sought. Town of Chester
v. Laroe Estates, Inc., 581 U. S. 433, 439 (2017). Bowsher, we are told,
involved a legislative offcer—not an executive one, which supposedly
makes all the difference. Ante, at 259, n. 25. But there the Comptroller
was legislative only in the sense that he headed an “independent” depart-
ment and was accountable to Congress rather than the President. 478
U. S., at 730–732. If there is any difference here, it's that the FHFA
Director—who likewise heads an “independent” agency, 12 U. S. C.
§ 4511(a)—is accountable to no one. The idea that whether acts are void
or not turns on a label rather than on the functions an offcer is assigned
and who he is accountable to should not be taken seriously. E. g.,
Bowsher, 478 U. S., at 727–728, 732–733; Free Enterprise Fund v. Public
Company Accounting Oversight Bd., 561 U. S. 477, 484–486, 496–498
(2010); Seila Law, 591 U. S., at 206–208, 225; ante, at 251–253, 255–256.
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they did not select. It is the power to supervise—and, if
need
be, remove—subordinate offcials that allows a new
President to shape his administration and respond to the
electoral will that propelled him to offce. After all, from
the moment “an offcer is appointed, it is only the authority
that can remove him, and not the authority that appointed
him, that he must fear.” Synar v. United States, 626
F. Supp. 1374, 1401 (DC 1986) (per curiam). Chief Justice
Taft, who knew a little about such things, put it this way:
“[W]hen the grant of the executive power is enforced by the
express mandate to take care that the laws be faithfully
executed, it emphasizes the necessity for including within
the executive power as conferred the exclusive power of re-
moval.” Myers v. United States, 272 U. S. 52, 122 (1926).
Because the power of supervising subordinates is essential to
sound constitutional administration, as between presidential
hiring and fring “the unfettered ability to remove is the
more important.” M. McConnell, The President Who Would
Not Be King 167 (2020).
Protecting this aspect of the separation of powers isn't just
about protecting presidential authority. Ultimately, the
separation of powers is designed to “secur[e] the freedom of
the individual.” Bond v. United States, 564 U. S. 211, 221
(2011); ante, at 244–246. That's no less true here than any-
where else. As Hamilton explained, the point of ensuring
presidential supervision of the Executive Branch is to ensure
“a due dependence on the people” and “a due responsibility”
to them; these are key “ingredients which constitute safety
in the republican sense.” The Federalist No. 70, p. 424 (C.
Rossiter ed. 1961). In the case of a removal defect, a wholly
unaccountable government agent asserts the power to make
decisions affecting individual lives, liberty, and property.
The chain of dependence between those who govern and those
who endow them with power is broken. United States v.
Arthrex, Inc., 594 U. S. 1, 29 (2021) (Gorsuch, J., concurring
in part and dissenting in part). Few things could be more
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perilous to liberty than some “fourth branch” that does not
answer
even to the one executive offcial who is accountable
to the body politic. FTC v. Ruberoid Co., 343 U. S. 470, 487
(1952) (Jackson, J., dissenting).
Instead of applying our traditional remedy for constitu-
tional violations like these, the Court supplies a novel and
feeble substitute. The Court says that, on remand in this
suit, lower courts should inquire whether the President
would have removed or overruled the unconstitutionally in-
sulated offcial had he known he had the authority to do so.
Ante, at 259–260. So, if lower courts fnd that the President
would have removed or overruled the Director, then the for-
cause removal provision “clearly cause[d] harm” and the
Director's actions may be set aside. Id., at 260.
Not only is this “relief ” unlike anything this Court has
ever before authorized in cases like ours; it is materially
identica l to a remedia l approach th is Cour t prev i ously
rejected. In Bowsher, the Court directly addressed and ex-
pressly refused the dissent's insistence that it should under-
take a “ `consideration' of the `practical result of the removal
provision.' ” 478 U. S., at 730. Instead of speculating about
what would have happened in a different world where the
offcer's challenged actions were reviewable within the Exec-
utive Branch, the Court recognized that unconstitutionally
insulating an offcer from removal “inficts a `here-and-now'
injury” on affected parties. Seila Law, 591 U. S., at 212. In
this world, real people are injured by actions taken without
lawful authority. “The Framers did not rest our liberties on
. . . minutiae” like some guessing game about what might
have transpired in another timeline. Free Enterprise Fund
v. Public Company Accounting Oversight Bd., 561 U. S. 477,
500 (2010).
Other problems attend the Court's remedial science fction.
It proceeds on an assumption that Congress would have
adopted a version of the Housing and Economic Recovery
Act (HERA) that allowed the President to remove the Direc-
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tor. But that is sheer speculation. It is equally possible
that
—had Congress known it could not have a Director in-
dependent from presidential supervision—it would have
deployed different tools to rein in Fannie Mae and Freddie
Mac. Surely, Congress possessed no shortage of options.
By way of example, it could have conferred new regulatory
functions on an existing (and accountable) agency like the
Department of Housing and Urban Development, or it might
have enacted detailed statutes to govern Fannie and Fred-
die's activities directly. For that matter, Congress might
have opted for no additional oversight rather than subject
the Federal Housing Finance Agency to supervision by the
President.
This Court possesses no authority to substitute its own
judgment about which legislative solution Congress might
have adopted had it considered a problem never put to it.
That is not statutory interpretation; it is statutory reinven-
tion. Indeed, while never uttering the words “severance
doctrine,” the Court today winds up implicitly resting its
remedial enterprise upon it—severing, or removing, one part
of Congress's work based on speculation about its wishes and
usurping a legislative prerogative in the process. See, e. g.,
Arthrex, 594 U. S., at 32–33 (Gorsuch, J., concurring in part
and dissenting in part); Synar, 626 F. Supp., at 1393. By
once again purporting to do Congress's job, we discourage
the people's representatives from taking up for themselves
the task of consulting their oaths, grappling with constitu-
tional problems, and specifying a solution in statutory text.
“Congress can now simply rely on the courts to sort [it] out.”
Tennessee v. Lane, 541 U. S. 509, 552 (2004) (Rehnquist,
C. J., dissenting).
2
2
Justice Thomas stakes out more foreign terrain. After saying that
he “join[s] the Court's opinion in full,” he argues there was no constitu-
tional violation at all because the President—despite statutes barring his
way—was free to remove the Director all along. Ante, at 261, 263–264, 267.
Accordingly, it seems Justice Thomas disagrees with all of Part III–B's
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The Court's conjecture does not stop there. After guess-
i
ng what legislative scheme Congress would have adopted
in some hypothetical but-for world, the Court tasks lower
courts and the parties with reconstructing how executive
agents would have reacted to it. On remand, we are told,
the litigants and lower courts must ponder whether the Pres-
ident would have removed the Director had he known he was
free to do so. Ante, at 260. But how are judges and law-
yers supposed to construct the counterfactual history? It is
no less a speculative enterprise than guessing what Congress
would have done had it known its statutory scheme was un-
constitutional. It's only that the Court prefers to reserve
the big hypothetical (legislative) choice for itself and leave
others for lower courts to sort out.
Consider the guidance the Court offers. It says lower
courts should examine clues such as whether the President
made a “public statement expressing displeasure” about
merits analysis in addition to the Court's novel remedy in Part III–C.
Like the Court, though, he seemingly takes as given that Congress would
have chosen to adopt HERA even if it had known this course required
subjecting the Director to removal by the President. Ante, at 265–266.
In doing so, he parts ways with his opinion last year in Seila Law, where
he recognized the following: First, in cases like ours, a constitutional viola-
tion arises because of “the combination” of statutory terms that (1) confer
executive power on an offcial and (2) improperly insulate him from re-
moval. 591 U. S., at 258 (Thomas, J., concurring in part and dissenting in
part). Second, absent statutory direction from Congress, we cannot di-
vine “which of the provisions” Congress would have kept and which it
would have scrapped—or what else it might have done—had it known its
actual choice was unconstitutional. Id., at 260. Third, this Court lacks
the “ `editorial freedom' ” to pick and choose among options like these, for
doing so would usurp Congress's legislative authority. Ibid. Today, Jus-
tice Thomas suggests Seila Law rested on one party's concession about
the meaning of the law. Ante, at 267–268, n. 5; ante, at 269–270. But
parties cannot stipulate to the law. E. g., Zivotofsky v. Kerry, 576 U. S.
1, 41, n. 2 (2015) (Thomas, J., concurring in judgment in part and dissent-
ing in part); Young v. United States, 315 U. S. 257, 258–259 (1942). More
importantly, his observations were right then—and they remain so today.
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something the Director did, or whether the President “at-
tempted”
to remove the Director but was stymied by lower
courts. Ante, at 259–260. But what if the President never
considered the possibility of removing the Director because
he was never advised of that possibility? What if his advis-
ers themselves never contemplated the option given statu-
tory law? And even putting all that aside, what evidence
should courts and parties consult when inquiring into the
President's “displeasure”? Are they restricted to publicly
available materials, even though the most probative evidence
may be the most sensitive? To ascertain with any degree
of confdence the President's state of mind regarding the Di-
rector, don't we need testimony from him or his closest staff ?
The Court declines to tangle with any of these questions.
It's hard not to wonder whether that's because it intends for
this speculative enterprise to go nowhere. Rather than
intrude on of ten-privileged executive deliberations, the
Court may calculate that the lower courts on remand in this
suit will simply refuse retroactive relief. See, e. g., ante, at
275–276 (Kagan, J., concurring in part and concurring in
judgment). But if this is what the Court intends, why not
just admit it and put these parties out of their misery?
As strange as the Court's remand instructions are, the
more important question lower courts face isn't how to re-
solve this suit but what to do with the next one. Today, the
Court sounds the call to arms and declares a constitutional
violation only to head for the hills as soon as it's faced with
a request for meaningful relief. But as we have seen, the
Court has in the past consistently vindicated Article II both
in reasoning and in remedy. E. g., Seila Law, 591 U. S., at
238 (opinion of Roberts, C. J.); Lucia v. SEC, 585 U. S.
237, 251–252, n. 5 (2018); NLRB v. Noel Canning, 573 U. S.
513, 557 (2014); Ryder v. United States, 515 U. S. 177, 182–183
(1995); Bowsher, 478 U. S., at 736. These cases—involving
appointment and removal defects alike—remain good law.
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cases to make of all this? The only lesson I can divine is
that
the Court's opinion today is a product of its unique con-
text—a retreat prompted by the prospect that affording a
more traditional remedy here could mean unwinding or dis-
gorging hundreds of millions of dollars that have already
changed hands. Ante, at 257. The Court may blanch at au-
thorizing such relief today, but nothing it says undoes our
prior guidance authorizing more meaningful relief in other
situations.
For my part, rather than carve out some suit-specifc,
removal-only, money-in-the-bank exception to our normal
rules for Article II violations, I would take a simpler and
more familiar path. Whether unconstitutionally installed or
improperly unsupervised, offcials cannot wield executive
power except as Article II provides. Attempts to do so are
void; speculation about alternate universes is neither neces-
sary nor appropriate. In the world we inhabit, where indi-
viduals are burdened by unconstitutional executive action,
they are “entitled to relief.” Lucia, 585 U. S., at 251.
Justice Sotomayor, with whom Justice Breyer joins,
concurring in part and dissenting in part.
Prior to 2010, this Court had gone the greater part of a
century since it last prevented Congress from protecting an
Executive Branch offcer from unfettered Presidential re-
moval. Yet today, for the third time in just over a decade,
the Court strikes down the tenure protections Congress pro-
vided an independent agency's leadership.
Last Term, the Court held in Seila Law LLC v. Consumer
Financial Protection Bureau, 591 U. S. 197 (2020), that for-
cause removal protection for the Director of the Consumer
Financial Protection Bureau (CFPB) violated the separation
of powers. Id., at 205. As an “independent agency led by
a single Director and vested with signifcant executive
power,” the Court reasoned, the CFPB had “no basis in his-
tory and no place in our constitutional structure.” Id., at
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220. Seila Law expressly distinguished the Federal
H
ousing Finance Agency (FHFA), another independent
Agency headed by a single Director, on the ground that the
FHFA does not possess “regulatory or enforcement author-
ity remotely comparable to that exercised by the CFPB.”
Id., at 222. Moreover, the Court found it signifcant that,
unl ike the CFPB, the FHFA “reg u lates pr i mar i ly
Gover nment-sponsored enterpr ises, not purely pr ivate
actors.” Ibid.
Nevertheless, the Court today holds that the FHFA and
CFPB are comparable after all, and that any differences be-
tween the two are irrelevant to the constitutional separation
of powers. That reasoning cannot be squared with this
Court's precedents, least of all last Term's Seila Law. I re-
spectfully dissent in part from the Court's opinion and from
the corresponding portions of the judgment.
1
I
Congress created the FHFA in the Housing and Economic
Recovery Act of 2008 (Recovery Act), 12 U. S. C. § 4501 et
seq. The FHFA supervises the Federal National Mortgage
Association (Fannie Mae), the Federal Home Loan Mortgage
Corporation (Freddie Mac), and the 11 Federal Home Loan
Banks. These 13 Government-sponsored entities (GSEs)
provide liquidity and stability to the national housing market
by, among other things, purchasing mortgage loans from, and
offering fnancing to, private lenders.
1
I join Parts I and II of the Court's opinion rejecting petitioners' argu-
ment that the FHFA actions under review violated the Housing and Eco-
nomic Recovery Act of 2008, as well as Part III–C discussing what the
appropriate remedial implications would be if the FHFA Director's for-
cause removal protection were unconstitutional. I join also Part II of
Justice Kagan's concurrence concerning the proper remedial analysis for
the Fifth Circuit to conduct on remand. Finally, I note that Justice
Thomas' arguments that an improper removal restriction does not neces-
sarily render agency action unlawful warrant further consideration in an
appropriate case.
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The FHFA “establish[es] standards” for the GSEs relating
to
risk management, internal auditing, and minimum capital
requirements. § 4513b(a). If the FHFA believes a GSE
may be failing to meet its requirements under the Act, the
Agency may initiate administrative proceedings, § 4581, issue
subpoenas, § 4517(g), and, in some circumstances, impose
monetary penalties, § 4585. In the event a GSE falls into
fnancial distress, the FHFA may appoint itself “conservator
or receiver for the purpose of reorganizing, rehabilitating, or
winding up” the GSE's affairs. § 4617(a)(2).
In 2008, the FHFA put both Fannie Mae and Freddie Mac
under conservatorship. In 2016, shareholders of Fannie Mae
and Freddie Mac (petitioners) sued the FHFA, challenging
the Agency's conservatorship decisions in part by arguing
that the Agency's structure is unconstitutional. The FHFA
is headed by a single Director, who serves a 5-year term and
may be removed by the President “for cause.” § 4512(b)(2).
According to petitioners, the separation of powers requires
the FHFA Director to be removable by the President at will.
II
Where Congress is silent on the question, the general rule
is that the President may remove Executive Branch offcers
at will. See Myers v. United States, 272 U. S. 52, 126 (1926).
Throughout our Nation's history, however, Congress has
identifed particular offcers who, because of the nature of
their offce, require a degree of independence from Presiden-
tial control. Those offcers may be removed from their posts
only for cause. Often, Congress has granted fnancial regu-
lators such independence in order to bolster public confdence
that fnancial policy is guided by long-term thinking, not
short-term political expediency. See Seila Law, 591 U. S.,
at 273–276 (Kagan, J., concurring in judgment with respect
to severability and dissenting in part) (discussing examples).
Other times, Congress has provided tenure protection to of-
fcers who investigate other Government actors and thus
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might face conficts of interest if directly controlled by the
President.
See, e. g., 28 U. S. C. § 596(a)(1) (making an inde-
pendent counsel removable “only by the personal action of
the Attorney General and only for good cause” or disability).
In a line of decisions spanning more than half a century,
this Court consistently approved of independent agencies
and independent counsels within the Executive Branch.
See Humphrey's Executor v. United States, 295 U. S. 602
(1935); Wiener v. United States, 357 U. S. 349 (1958); Mor-
rison v. Olson, 487 U. S. 654 (1988). In recent years, how-
ever, the Court has taken an unprecedentedly active role in
policing Congress' decisions about which offcers should
enjoy independence. See Seila Law, 591 U. S. 197; Free En-
terprise Fund v. Public Company Accounting Oversight
Bd., 561 U. S. 477 (2010). These decisions have focused
almost exclusively on perceived threats to the separation of
powers posed by limiting the President's removal power,
while largely ignoring the Court's own encroachment on
Congress' constitutional authority to structure the Execu-
tive Branch as it deems necessary.
Never before, however, has the Court forbidden simple
for-cause tenure protection for an Executive Branch offcer
who neither exercises signifcant executive power nor regu-
lates the affairs of private parties. Because the FHFA
Director fits that descr ipti on, this Court's precedent,
separation-of-powers principles, and proper respect for Con-
gress all support leaving in place Congress' limits on the
grounds upon which the President may remove the Director.
A
In Seila Law, the Court held that the CFPB Director, an
individual with “the authority to bring the coercive power
of the state to bear on millions of private citizens and busi-
nesses,” 591 U. S., at 219–220, must be removable by the Presi-
dent at will. In so holding, the Court declined to overrule
Humphrey's Executor and Morrison, which respectively up-
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held the independence of the Federal Trade Commission's
(FTC)
fve-member board and an independent counsel tasked
with investigating Government malfeasance. See 591 U. S.,
at 228 (“[W]e do not revisit Humphrey's Executor or any
other precedent today”). Instead, Seila Law opted not to
“extend those precedents” to the CFPB, “an independent
agency led by a single Director and vested with signifcant
executive power.” 591 U. S., at 220.
2
The Court today concludes that the reasoning of Seila Law
“dictates” that the FHFA is unconstitutionally structured
because it, too, is led by a single Director. Ante, at 251. But
Seila Law did not hold that an independent agency may
never be run by a single individual with tenure protection.
Rather, that decision stated, repeatedly, that its holding was
limited to a single-director agency with “signifcant execu-
tive power.” 591 U. S., at 204, 238 (opinion of Roberts, C. J.),
220 (majority opinion). The question, therefore, is not
whether the FHFA is headed by a single Director, but whether
the FHFA wields “signifcant” executive power. It does not.
As a yardstick for measuring the constitutional signif-
cance of an agency's executive power, Seila Law looked to
the FTC as it existed at the time of Humphrey's Executor
(the 1935 FTC). 591 U. S., at 218–219. That agency had a
roving mandate to prevent private individuals and corpora-
tions alike from engaging in “ `unfair methods of competition
in commerce.' ” Humphrey's Executor, 295 U. S., at 620 (cit-
ing 15 U. S. C. § 45). To carry out its mandate, the 1935 FTC
had broad authority to issue complaints and cease-and-desist
orders. 295 U. S., at 620. The agency also had “wide pow-
ers of investigation,” which it used to make recommenda-
tions to Congress, as well as the responsibility to assist
2
As Justice Kagan explained in dissent, Seila Law rested on implausi-
ble recharacterizations of this Court's separation-of-powers jurisprudence.
I continue to believe that Seila Law was wrongly decided. Whatever the
merits of that decision, however, it does not support invalidating the
FHFA Director's independence.
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courts in antitrust litigation by “ `ascertain[ing] and report-
[i
ng] an appropriate form of decree.' ” Id., at 621.
These powers may seem “signifcant” in a colloquial sense.
In Seila Law's view, however, they did not rise to the level
of constitutional signifcance. That was in contrast to the
CFPB's powers, which far outstrip the 1935 FTC's. While
the 1935 FTC's ambit was limited to preventing unfair com-
petition and violations of antitrust law, the CFPB “possesses
the authority to promulgate binding rules feshing out 19 fed-
eral statutes, including a broad prohibition on unfair and de-
ceptive practices in a major segment of the U. S. economy.”
Seila Law, 591 U. S., at 218. While the 1935 FTC could
issue cease-and-desist orders and recommended dispositions,
the CFPB “may unilaterally issue fnal decisions awarding
legal and equitable relief in administrative adjudications”
and “seek daunting monetary penalties against private par-
ties on behalf of the United States in federal court.” Ibid.
Far from a “mere legislative or judicial aid” like the 1935 FTC,
id., at 218–219, the CFPB is a “mini legislature, prosecutor,
and court, responsible for creating substantive rules for a wide
swath of industries, prosecuting violations, and levying knee-
buckling penalties against private citizens,” id., at 222, n. 8.
Measured against such standards, the FHFA comfortably
fts within the same category of constitutional insignifcance
as the 1935 FTC. To some, the CFPB Director was “the
single most powerful offcial in the entire U. S. Government,
other than the President,” “at least when measured in terms
of unilateral power.” PHH Corp. v. Consumer Financial
Protection Bur., 881 F. 3d 75, 172 (CADC 2018) (Kavanaugh,
J., dissenting). The FHFA Director is not one of the most
powerful offcials in the U. S. Government. As the Court
recognized in Seila Law, the FHFA does “not involve regula-
tory or enforcement authority remotely comparable to that
exercised by the CFPB.” 591 U. S., at 222.
The FHFA's authority is much closer to (and, in some re-
spects, far less than) that of the 1935 FTC. Like the 1935

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289
Opinion of Sotomayor, J.
FTC, the FHFA oversees regulated entities and gathers
speci
fed information from them on Congress' behalf. Un-
l ike the 1935 FTC, however, wh ich was t asked w ith
implementing the Nation's antitrust laws and policing unfair
competition, the FHFA is limited to specifed duties under
the Recovery Act. Furthermore, while the 1935 FTC had
jurisdiction over countless individuals and corporations, the
FHFA regulates just 13 GSEs.
Moreover, one of the FHFA's main powers is assuming the
mantle of conservatorship or receivership over the GSEs,
which hardly registers as executive at all. When acting as
a conservator or receiver, an agency like the FHFA “ `steps
into the shoes' ” of the party under distress, O'Melveny &
Myers v. FDIC, 512 U. S. 79, 86 (1994), and largely “ `shed[s]
its government character,' ” Herron v. Fannie Mae, 861 F. 3d
160, 169 (CADC 2017). Even granting that there are differ-
ences between the FHFA's powers as a conservator and
those of a common-law conservator, “the FHFA's conserva-
torship function [is] a role one would be hard-pressed to char-
acterize as near the heart of executive power.” Collins v.
Mnuchin, 938 F. 3d 553, 620 (CA5 2019) (Higginson, C. J.,
dissenting in part).
To be sure, the FHFA has at least one executive power
that the 1935 FTC did not: the power to impose fnes. But
that fning authority is quite limited. The FHFA may im-
pose fnes on the 13 GSEs it regulates for failing to meet
their reporting requirements and housing goals under the
Recovery Act and for violating the requirements of the Fed-
eral Housing Enterprises Financial Safety and Soundness
Act of 1992, 106 Stat. 3941. See 12 U. S. C. §§ 4585, 4636.
Petitioners point to no instance in the Agency's 13-year
history in which it has ever fned a GSE.
3
3
By comparison, the CFPB has fned private actors billions of dollars.
Seila Law LLC v. Consumer Financial Protection Bureau, 591 U. S.
197, 206–207 (2020).
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That is not to say that the FHFA possesses no executive
author
ity whatsoever. It does. But the 1935 FTC, too,
possessed executive authority, just not enough to be “sig-
nifcant.” See Seila Law, 591 U. S., at 216, n. 2 (“ `[I]t is
hard to dispute that the powers of the FTC at the time of
Humphrey's Executor would at the present time be consid-
ered “executive,” at least to some degree' ” (quoting Mor-
rison, 487 U. S., at 690, n. 28)). When measured against the
benchmark of the 1935 FTC, the FHFA does not possess
“signifcant executive power” within the meaning of Seila
Law. It is in “an entirely different league” from the CFPB.
591 U. S., at 222, n. 8.
B
Because the FHFA does not possess signifcant executive
power, the question under Seila Law is whether this Court's
decisions upholding for-cause removal provisions in Hum-
phrey's Executor and Morrison should be “extend[ed]” to
the FHFA Director. 591 U. S., at 220. The clear answer
is yes.
Not only does the FHFA lack signifcant executive power,
the authority it does possess is exercised over other govern-
mental actors. In that respect, the FHFA Director mimics
the independent counsel whose tenure protections were up-
held in Morrison. The independent counsel, as Seila Law
noted, could bring criminal prosecutions and thus “wielded
core executive power.” 591 U. S., at 219. Separation-of-
powers concerns were allayed, however, because “that
power, while signifcant, was trained inward to high-ranking
Governmental actors identifed by others.” Ibid. In ex-
plaining why “[t]he logic of Morrison” did “not apply” to the
CFPB, Seila Law emphasized that the CFPB “has
the authority to bring the coercive power of the state to bear
on millions of private citizens and businesses.” Id., at 219–
220.
Morrison's logic may not have applied to the CFPB, but
it certainly applies to the FHFA. The FHFA's executive
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power, too, is “trained inward,” on the 13 GSEs “identifed
by”
the Recovery Act. Seila Law, 591 U. S., at 219. While
the GSEs are now privately owned, they still operate under
congressional charters, see 12 U. S. C. § 4501(1), serve “im-
portant public missions,” ibid., and receive preferential
treatment under law by dint of their Government affliation,
§ 1719.
4
Seila Law itself distinguished the CFPB from the
FHFA precisely on the basis that the latter Agency “regu-
lates primarily Gover nment-sponsored enterpr ises, not
purely private actors.” 591 U. S., at 222.
Historical considerations further confrm the constitution-
ality of the FHFA Director's independence. Single-director
independent agencies with limited executive power, like the
FHFA, boast a more storied pedigree than do single-director
independent agencies with signifcant executive power, like
the CFPB. Consider three such examples, each discussed
in Seila Law. First, the Comptroller of the Currency, who
was briefy independent from Presidential removal during
the Civil War and thereafter retained a lesser form of tenure
protection. Id., at 220–221. Second, the Offce of Special
Counsel, which has been “headed by a single offcer since
1978.” Id., at 221. Third, the Social Security Administra-
tion, which has been “run by a single Administrator since
1994.” Ibid. Like the FHFA, these examples lack “regula-
tory or enforcement authority remotely comparable to
that exercised by the CFPB.” Id., at 222. While these
agencies thus offered “no foothold in history or tradition” for
4
The GSEs' ongoing ties with the Government long fueled public per-
ception that the Government would intervene if the GSEs were in danger
of collapse. See Congressional Research Serv., Fannie Mae and Freddie
Mac in Conservatorship: Frequently Asked Questions 2 (updated May 31,
2019) (noting that it was “widely believed prior to 2008 that the federal
government was an implicit backstop for the GSEs in light of their con-
gressional charters”). This perception became reality during the 2008
fnancial crisis, when the Treasury Department extended hundreds of bil-
lions of dollars in credit to Fannie Mae and Freddie Mac, and the FHFA
put those entities under conservatorship.
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the CFPB, ibid., they provide historical support for an
agency
with the FHFA's limited purview.
The FHFA also draws on a long tradition of independence
enjoyed by fnancial regulators, including the Comptroller of
the Treasury, the Second Bank of the United States, the Fed-
eral Reserve Board, the Securities and Exchange Commis-
sion, the Commodity Futures Trading Commission, and the
Federal Deposit Insurance Corporation. See id., at 272–276
(opinion of Kagan, J.). The public has long accepted (in-
deed, expected) that fnancial regulators will best perform
their duties if separated from the political exigencies and
pressures of the present moment.
In Seila Law, this tradition of independence was of little
help to the CFPB because, “even assuming fnancial institu-
tions . . . can claim a special historical status,” the CFPB's
unique powers put it “in an entirely different league” from
other fnancial regulators. Id., at 222, n. 8 (majority opin-
ion). In contrast, the FHFA's function as a monitor of regu-
lated entities important to economic stability makes the
FHFA far more similar to historically independent fnancial
regulators than to the CFPB. See FHFA, Performance and
Accountability Report 18 (2020) (“The [Recovery Act] vests
FHFA with the authorities, similar to those of other pruden-
tial fnancial regulators, to maintain the fnancial health of
the regulated entities”).
To recap, the FHFA does not wield signifcant executive
power, the executive power it does wield is exercised over
Government affliates, and its independence is supported by
historical tradition. All considerations weigh in favor of
recognizing Congress' power to make the FHFA Director
removable only for cause.
III
The Court disagrees. After Seila Law, the Court rea-
sons, all that matters is that “[t]he FHFA (like the CFPB) is
an agency led by a single Director.” Ante, at 251. From
that, the unconstitutionality of the FHFA Director's inde-
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pendence follows virtually a fortiori. The Court reaches
that
conclusion by disavowing the very distinctions it relied
upon just last Term in Seila Law in striking down the CFPB
Director's independence.
On three separate occasions, Seila Law stated that its hold-
ing applied to single-director independent agencies with
“signifcant executive power.” See 591 U. S., at 204, 238 (opin-
ion of Roberts, C. J.), 220 (majority opinion). Remarkably,
those words appear nowhere in today's decision. Instead, the
Court appears to take the position that exercising essentially
any executive power whatsoever is enough. Ante, at 251–
253. In terms of explanation, the Court says that it is “not
well-suited to weigh the relative importance of the regula-
tory and enforcement authority of disparate agencies” and
that it “do[es] not think that the constitutionality of removal
restrictions hinges on such an inquiry.” Ante, at 253.
The Court's position unduly encroaches on Congress' judg-
ments about which executive offcers can and should enjoy a
degree of independence from Presidential removal, and it can-
not be squared with Seila Law, which relied extensively on
such agency comparisons. Not only did Seila Law contrast
the CFPB's powers against those of the 1935 FTC in Hum-
phrey's Executor, see 591 U. S., at 218–219, as well as the inde-
pendent counsel in Morrison, see 591 U. S., at 219–220, it con-
cluded that the FHFA (along with the Comptroller of the
Currency, the Offce of Special Counsel, and the Social Security
Administration) does not possess “regulatory or enforcement
authority remotely comparable to that exercised by the
CFPB.” Id., at 222. Those distinctions underpinned Seila
Law's proclamation that the CFPB had “no basis in history and
no place in our constitutional structure.” Id., at 220. In the
Court's view today, however, all of those comparisons were ir-
relevant to the bottom-line question whether the CFPB Direc-
tor's tenure protections comport with the Constitution.
The Court today also suggests that whether an agency
regulates private individuals or Government actors does
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not meaningfully affect the separation-of-powers analysis.
An
te, at 255 (“[T]he President's removal power serves im-
portant purposes regardless of whether the agency in ques-
tion affects ordinary Americans by directly regulating them
or by taking actions that have a profound but indirect effect
on their lives”). That, too, is fatly inconsistent with Seila
Law, which returned repeatedly to this consideration. Not
only did Seila Law distinguish the CFPB from the independ-
ent counsel in Morrison on this basis, see 591 U. S., at 219,
it distinguished the CFPB from both the FHFA and the Of-
fce of Special Counsel for the same reason, see id., at 221.
That the Court is unwilling to stick to the methodology it
articulated just last Term in Seila Law is a telltale sign that
the Court's separation-of-powers jurisprudence has only con-
tinued to lose its way.
IV
The Court has proved far too eager in recent years to
insert itself into questions of agency structure best left to
Congress. In striking down the independence of the FHFA
Director, the Court reaches further than ever before, refus-
ing tenure protections to an Agency head who neither wields
signifcant executive power nor regulates private individu-
als. Troublingly, the Court justifes that result by ignoring
the standards it set out just last Term in Seila Law. Be-
cause I would afford Congress the freedom it has long pos-
sessed to make offcers like the FHFA Director independent
from Presidential control, I respectfully dissent.
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